RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 January 2008
	DOCKET NUMBER:  AR20070008928 


	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

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. Gerald J. Purcell

Chairperson

Mr. Donald Lewy

Member

Mr. David Tucker

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 her Reserve Component Survivor Benefit Plan (RCSBP) coverage be cancelled.

2.  The applicant states, in effect, that she does not remember electing RCSBP.  She was placed on the TDRL (Temporary Disability Retired List) effective 12 April 2005 and placed on the PDRL (Permanent Disability Retired List) effective 17 April 2007.  She received her first Retiree Account Statement and inquired because there were questions that needed to be answered.  She has been receiving disability payments from the VA (Veterans Administration).  She was informed by DFAS (Defense Finance and Accounting Service) not to worry about it and that there was an error in sending it to her.  She called and was referred to ARBA (Army Review Boards Agency) to complete an application for relief.  It was her understanding that she elected to decline RCSBP and now wishes to cancel her coverage. 

3.  The applicant provides a copy of her retirement orders and a copy of her NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service) in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows she enlisted in the South Dakota Army National Guard (SDARNG) on 9 January 1998, with prior service in the United States Air Force.  She was born on 29 June 1969.  She was promoted to specialist (SPC/ E-4) effective 24 July 1998.

2.  The applicant's MEB (Medical Evaluation Board) and PEB (Physical Evaluation Board) are unavailable for review. 

3.  The applicant served in the SDARNG until she was placed on the TDRL effective 12 April 2005.

4.  On 15 April 2005, the applicant completed a DD Form 2656-5 (RCSBP Election Certificate).  She indicated that she was married and had two dependent children.  In section IV- Coverage, of her DD Form 2656-5, she elected option A: decline to make an election until age 60 (29 June 2029).  



5.  She erroneously completed items 13 (Type of Coverage), 14 and 15 of the DD Form 2656-5, and elected spouse and children coverage.  In section V-Level of Coverage, she elected full retired pay.  In section VI-Supplemental SBP (SSBP) Coverage (Optional), she declined supplemental coverage for her spouse.  The application was signed by the applicant, and was witnessed and notarized by proper authorities.

6.  The applicant was removed from the TDRL and was placed on the PDRL effective 17 April 2007, in the pay grade E-4.

7.  The applicant provided a copy of the her Retiree Account Statement (SBP/RSFPP [Retired Serviceman's Family Protection Plan] (Premium Bill), for the month of June 2007.  It indicated a remaining balance for SBP premiums due from prior month of $48.43, interest charge on remaining balance due (6% APR) of .24, and this month's cost of $48.43, for a total due by 28 June 2007, of $97.10.  

8.  On 16 October 2007, DFAS informed this agency by email that the applicant used the wrong DD Form 2656 and signed it on 15 April 2007 after having been placed on the TDRL.  She had automatic SBP and only this Board could change it.

9.  By letter, dated 29 November 2007, the Board analyst requested that the applicant clarify whether her spouse had concurred with her election not to participate in SBP.  The applicant's spouse completed a notarized statement on 11 December 2007 concurring with the applicant's election not to participate in SBP.

10.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name, and are irrevocable except as provided for by law.

11.  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.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant alleges that she does not remember electing SBP; however, the evidence shows that she completed an SBP Election Certificate, DD Form 2656-5 (the incorrect form for a member being medically retired), on 15 April 2005, after placement on the TDRL.  She indicated at that time that she was married and had two dependent children; she declined SBP until age 60; she elected spouse and children coverage, and elected coverage based on full retired pay.  She declined supplemental coverage for her spouse. 

2.  The applicant should have completed DD Form 2656 (Data for Payment of Retired Personnel) and elected not to participate prior to her placement on the TDRL.  It is apparent that she was not properly counseled on her benefits and was informed of SBP after her placement on the TDRL. 

3.  The applicant reviewed her Retiree Account Statement (SBP/RSFPP Premium Bill) and was informed by DFAS that she owed $97.10 for SBP/RSFPP which was due by 28 June 2007.  She inquired about the premium and was informed by DFAS not to worry and that an error had occurred.  

4.  The applicant contends that it was her clear understanding that she elected to decline SBP and now wishes to cancel her election.  There is no specific form to be used when requesting cancellation of SBP and the applicant was instructed by a DFAS representative to apply to this Board for relief. 

5.  The applicant's spouse submitted a written statement which was notarized on on 11 December 2007 concurring with the applicant's election not to participate in SBP.

6.  Considering the facts and circumstances of this case, it would now be appropriate, as a matter of fairness and equity, to correct her records to show that she declined to make an SBP election.  It would be in the interest of justice to cancel her SBP Coverage, remit her current debt, of the SBP/RSFPP) premiums, in the amount of $97.10, and to further return to her any premiums that may have been collected since her retirement that DFAS indicates that she owes. 






BOARD VOTE:

__GP____  ___DL__  ___DT___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected:

	a.  by showing that she declined to make an SBP election with spousal concurrence prior to her placement on the TDRL; 

	b.  by showing that her current debt, of the SBP/RSFPP premiums, in the 
amount of $97.10, was erroneous; and

	c.  by returning all premiums thus far paid since her retirement. 




_____Gerald J. Purcell____
          CHAIRPERSON




INDEX

CASE ID
AR20070008928
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070124
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20070417
DISCHARGE AUTHORITY
AR20070008928
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
137
2.

3.

4.

5.

6.