RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070007710 


	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. Rial D. Coleman

Analyst


The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Scott W. Faught

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, revocation of his enrollment in the Survivor Benefit Plan (SBP) and discontinuation of the deduction of monthly payments from his retirement pay.

2.  The applicant states, in effect, that he declined enrollment in the Survivor Benefit Plan when he completed his application for retired pay on 1 July 2005, prior to reaching 60 years of age.

3.  The applicant provides a copy of DD Form 2656 (Data for Payment of Retired Personnel), dated 1 July 2005; a copy of DD Form 2656-2 (Survivor Benefit Plan Termination Request), dated 15 May 2007; a copy of DD Form 2656 (Data for Payment of Retired Personnel), dated 21 May 2007; and a copy of DFAS-CL Form 7220/148 (Retiree Account Statement), effective 3 May 2007, in support of this request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he initially entered the North Carolina National Guard on 1 July 1964 and was appointed as a commissioned officer on 28 November 1969.  His date of birth is 9 April 1947.  The highest rank and grade he achieved was major/pay grade O-4 with an effective date and date of rank (DOR) of 7 October 1986.

2.  On 28 September 1984, the Department of the Army and the Air Force, National Guard Bureau notified the applicant that he had completed the required years of service to be eligible for retired pay, on application, at age 60 (20-Year Letter).

3.  On 8 December 1984, the applicant completed a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate).  In item 8a of Section II (Marital, Dependency, and Election Status) he indicated he desired "Spouse only" coverage.  In item 9a, he elected "Full" coverage.  In item 9c, he elected
Option C (Immediate coverage).

4.  On 17 December 1984, the military personnel technician for the applicant's unit of assignment prepared a memorandum addressed to the Office of the Adjutant General for the State of North Carolina National Guard.  He indicated that the applicant had completed DD Form 1883 and that distribution of copies had been made accordingly.

5.  The applicant was honorably discharged on 31 March 1992, under the provision of National Guard Regulation (NGR) 635-100.  He was transferred to the United States Army Reserve Control Group (Reinforcement) in the rank of Major.

6  On 1 July 2005, in preparation for his retirement, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel).  In item 26g (Beneficiary Category(ies)), he elected not to participate in SBP.

7.  On 21 May 2007, the applicant completed an amended DD Form 2656 (Data for Payment of Retired Personnel).  In item 26g [Beneficiary Category(ies)], he elected not to participate in SBP.

8.  On 21 May 2007, the applicant completed a DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request).

9.  The applicant provides a copy of his Retiree Account Statement, dated
3 May 2007, which was prepared by the Defense Finance and Accounting Service (DFAS), Cleveland Center.  The statement shows a deduction for full, spouse only coverage under the Survivor Benefit Plan.

10.  Public Law 95-397, the Reserve Component SBP, 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 (costs for option C being the more expensive).  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 should the member have died prior to age 60.


11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to revocation of his enrollment in the Survivor Benefit Plan and discontinuation of the deduction of monthly payments from his retirement pay was carefully considered and determined to be without merit.

2.  There is no evidence in the available records and the applicant has not provided sufficient evidence which shows that he was not properly advised about the potential consequences of choosing the various options of the Survivor Benefit Plan when he made his initial election for enrollment.  Based on the foregoing, there is insufficient evidence to grant the applicant's request for terminating enrollment in the SBP in this case.

3.  The evidence shows that the applicant completed a Survivor Benefit Plan (SBP) Election Certificate on 8 December 1984.  At that time, he had three options to choose from, two of which were irrevocable, and he chose to enroll in the Survivor Benefit Plan Option C with immediate, full, spouse only coverage.  Based upon Option C, had the applicant died prior to reaching age 60, his spouse would have been eligible to receive full SBP entitlements.  The additional DD Forms 2656 that was completed by the applicant on a subsequent date is null and void because he chose an irrevocable option when he initially enrolled in RCSBP on 8 December 1984.  His RCSBP automatically rolled over into SBP upon his reaching age 60.  The DD Form 2656-2 is premature.

4.  However, the SBP statute does permit retirees to terminate their participation during the one year following the second anniversary of the date the retiree began to receive retired pay (9 April 2009 through 8 April 2010), provided the spouse concurs in writing.  No previous costs will be reimbursed.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM__  __JRM___  __SWF__  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 T. Meixell____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.