RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 April 2007
      DOCKET NUMBER:  AR20070005016


      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.

|     |Mr. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. John G. Heck                  |     |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 his Survivor Benefit Plan (SBP)
coverage be cancelled.

2.  The applicant states he enrolled in the [Reserve Component] SBP (RCSBP)
17 years ago.  He was told he could change the SBP [coverage] when he
turned age 60.  However, he completed a DD Form 2656 (Data for Payment of
Retired Personnel) and checked that he did not want the SBP, with his
wife’s concurrence, and he is still being charged for the SBP.  His wife is
a Master Sergeant in the U. S. Army Reserve and will have her own retired
pay.

3.  The applicant provides a divorce decree from his previous marriage and
his marriage certificate for his current marriage.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 15 February 1947.  After having had prior
service in the Regular Army, he entered the U. S. Army Reserve in 1973.  He
was promoted to Sergeant Major, E-9 on 9 December 1988.  He was laterally
appointed to Command Sergeant Major apparently sometime after September
1989.

2.  The applicant’s notification of eligibility for retired pay at age 60
(his 20-year letter) was dated 25 May 1991.  On 26 August 1991, he
completed a DD Form 1883 electing to enroll in the RCSBP for spouse
coverage, full base amount, Option C.  The DD Form 1883 stated, “IMPORTANT:
 The decision you make with respect to participation in the Survivor
Benefit Plan is a permanent irrevocable decision.”

3.  On 11 April 1995, the applicant was divorced from A___.  The divorce
decree did not mention the SBP.

4.  The applicant married K___ on 15 January 1999.

5.  On 5 April 2006, the applicant completed a DD Form 2656.  In item 26,
he indicated he elected not to participate in the SBP.  In item 30, his
spouse concurred with his decision.

6.  The instructions pages of the DD Form 2656 provided guidance that
members who elected RCSBP were not to complete items 26 through 31.

7.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that
military members could elect to have their retired pay reduced to provide
for an annuity after death to surviving dependents.  Changes in SBP options
are not authorized except in specific instances as authorized by law.

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 SBP 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; (C)  elect that a
beneficiary receive an annuity immediately upon their death if before age
60.  If death does not occur before age 60, the RCSBP costs for options B
and C are deducted from the member’s retired pay.  Once a member elects
either Options B or C in any category of coverage, that election is
irrevocable.  Option B and C participants do not make a new SBP election at
age 60.  They cannot cancel SBP participation or change options they had in
RCSBP – it automatically rolls into SBP coverage.  If RCSBP Option B or C
is elected, there is a Reservist Portion cost added to the basic cost of
the SBP to cover the additional benefit and assured protection had the
member died prior to age 60.

9.  Public Law 99-145, enacted 8 November 1985, permitted a previously
participating retiree upon remarriage to elect not to resume spouse
coverage or to increase reduced coverage for the latter spouse.  Changes
must be made prior to the first anniversary of remarriage or else the
previously suspended coverage resumes by default on the first day of the
month following the first anniversary of the remarriage, with costs owed
from that date.  An election to terminate spouse coverage under this law,
once made, is irrevocable.

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.  Reservists who elected an
option under the RCSBP will continue to have the Reservist Portion cost
deducted from their retired pay.  The effective date of termination is the
first day of the first calendar month following the month in which the
election is received by the Secretary concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s DD Form 1883 informed him that his RCSBP election was
an irrevocable decision.  When he completed his DD Form 2656, the
instructions pages informed him that since he had made an RCSBP election he
was not to make a standard SBP election.

2.  The applicant’s contention that his current spouse will have her own
retired pay is understood.  When he married his current spouse in January
1999, he had a one-year opportunity in which he could have elected not to
resume spouse coverage.  Either he was not aware that he could make that
election or he failed to make that election in a timely manner.  In either
case his spouse, even though she would have been eligible for her own
retired pay at age 60, would have been eligible to receive the RCSBP
annuity had he died prior to reaching age 60.

3.  The applicant turned age 60 on 15 February 2007.  On 1 March 2009, he
will have a one-year opportunity to disenroll from the SBP.  If he
disenrolls at that time, the Reservist Portion cost of his RCSBP will still
be deducted from his retired pay.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jns___  __dkh___  __jgh___  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.




                                  __John N. Slone_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070005016                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070419                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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