RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 July 2007
	DOCKET NUMBER:  AR20070000335 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Susan A. Powers

Member

Mr. Edward E. Montgomery

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the Reserve Component Survivor Benefit Plan (RCSBP) election that he made on 24 November 1993 be rescinded and that the document he submitted on 19 July 2006, in which he elected not to participate in the RCSBP, be followed.

2.  The applicant states, in effect, that he believes that the RCSBP election he made upon application for retired pay in July 2006 was controlling and overruled any previous RCSBP election.

3.  The applicant provides a copy of a DD Form 2656 (Data for Payment of Retired Personnel), dated 19 July 2006, and a Retiree Account Statement, dated
22 November 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military service records show that his date of birth is
5 November 1946.

2.  The applicant’s military service records show that he enlisted in the U.S. Army Reserve (USAR) on 13 September 1966, was appointed a commissioned officer on 26 May 1968, and was ordered to active duty on 10 August 1968.  The applicant was released from active duty on 9 August 1970, transferred to the USAR, continued to serve in the USAR, and attained the rank of lieutenant colonel/pay grade O-5.

3.  On 25 August 1993, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  This letter informed the applicant, in pertinent part, that he was entitled to participate in the RCSBP established by Public Law 95-397, which enables him to provide an annuity for his spouse and other eligible beneficiaries.

4.  The applicant’s military service records contain a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate), dated 24 November 1993.  This document shows that the applicant elected “Spouse and Children” coverage, based on the full amount of his retired pay, and Option C (Immediate Coverage).

5.  On 12 July 1996, the applicant was transferred to the Retired Reserve with
20 or more creditable years of service for retirement.

6.  In the processing of this case, an official with the Defense Finance and Accounting Service (DFAS) provided information confirming that the applicant elected RCSBP “Spouse and Children” coverage (based on the full amount of his retired pay) and Option C (Immediate Coverage) on 24 November 1993.

7.  In support of his application, the applicant provides a copy of a DD Form 2656, dated 19 July 2006, which shows that approximately 4 months before the applicant’s 60th birthday he completed the DD Form 2656 and indicated that he elected not to participate in SBP and that he had eligible dependents under the plan.  The DD Form 2656 also shows that the applicant’s spouse, Judith B. K____, signed the form in Section XI (SBP Spouse Concurrence), Item 30 (Spouse), block a (Signature); the applicant signed the form in Section XII (Certification), Item 32 (Member), block a (Signature); and the form was witnessed by a notary public on 19 July 2006.  The applicant also provides a copy of his Retiree Account Statement, dated 22 November 2006, which shows, in pertinent part, that he has SBP spouse only coverage based on the full amount of his retired pay.

8.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 
60.  Three options are available: (a) elect to decline enrollment and choose 
at age 60 whether to start RCSBP participation; (b) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Normally an election, once made, is irrevocable except as provided for by law.

9.  Title 10, United States Code, section 1448, provides that if a person makes an election not to participate in the SBP, the person's spouse shall be notified of that election.  Spousal concurrence is needed when a married person declines coverage, elects to provide an annuity for his/her spouse at less than the maximum level, or elects to provide an annuity for a dependent child(ren), but not for his/her spouse.

10.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse's concurrence is required.  No premiums will be refunded to those who opt to disenroll.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the RCSBP election he made on 24 November 1993 should be rescinded and that the document he submitted on 19 July 2006, in which he elected not to participate in the RCSBP, was controlling and overruled any previous RCSBP election was carefully considered.

2.  The evidence of record confirms that in 1993, upon becoming eligible to receive retired pay at age 60, the applicant elected RCSBP “Spouse and Children” coverage (based on the full amount of his retired pay) and Option C (Immediate Coverage), as evidenced by the DD Form 1883 he completed at that time.  The SBP statute provides that an election, once made, is irrevocable, except as provided for by law.  The DD Form 1883 did advise that the election would be irrevocable.  Upon reaching age 60 and applying for retired pay, the RCSBP automatically rolled over into the SBP.  Therefore, the applicant is not entitled to correction of his records by rescinding the DD Form 1883.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  The evidence of record shows that the applicant attained age 60 and eligibility for retired pay on 5 November 2006.  The SBP statute states that retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP; however, the spouse's concurrence is required.

5.  The applicant is advised that he will have a one-year period during which he may opt to terminate SBP participation and withdraw from the SBP, beginning on the second anniversary of the date on which his retired pay started.  In support of that effort, a copy of DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request) is being provided to the applicant, along with this Record of Proceedings.  The applicant may also obtain a copy of this form via the Internet at:  http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KAN__  ___SAP_  ___EEM_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _Kathleen A. Newman____
          CHAIRPERSON




INDEX

CASE ID
AR20070000335
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/07/10
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19960712
DISCHARGE AUTHORITY
AR 140-10, Paragraph 6-2
DISCHARGE REASON
Retired Reserve
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
137.0300.0000
2.

3.

4.

5.

6.