RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20070015330 


	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.









      The following members, a quorum, were present:













	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 Reserve Component Survivor Benefit Plan (RCSBP) election be changed to "None."

2.  The applicant states, in effect, that he never elected to participate in the in the Survivor Benefit Plan (SBP) and that he has attempted to stop the SBP premiums for the past 5 years.  He further states that he is now requesting immediate withdrawal from the SBP.  

3.  The applicant provides a copy of his SBP Premium Bill, dated October 2007, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he continuously served in an enlisted status in the New York Army National Guard (ARNG) from 14 December 1975 through 
1 May 1993, at which time he was transferred to the Retired Reserve. 

3.  The applicant's records contain a Survivor Benefit Plan Election Certificate (DD Form 1883), dated 14 May 1993.  This document shows in Section II (Marital, Dependency, and Election Status) that the applicant elected SBP coverage for "Spouse Only" under Option C (Immediate Coverage).

4.  On 25 October 2000, during his retirement processing, the applicant completed a Data for Payment of Retired Personnel (DD Form 2656), in which he elected “Spouse Only” SBP coverage at the full base amount.  

5.  Section XII (Certification) of the DD Form 2656 contains a statement in which the member must certify and acknowledge that he/she had been counseled on the termination procedures of the SBP.  The statement indicated that SBP participation could only be terminated within 1 year after the second anniversary of commencement of retired pay, and only with the spouse's concurrence.  It further indicated that if the option to terminate the SBP was exercised, future participation is barred.  The applicant authenticated this statement with his signature on the DD Form 2656.  

6.  United States Army Reserve Personnel Command, St. Louis, Orders Number P08-280190, dated 7 August 2002, placed the applicant on the Retired List, effective 20 October 2002.

7.  A review of the applicant's Defense Finance and Accounting Service (DFAS) file confirms that he initially completed a DD Form 1883, in which he elected to participate in the RCSBP and selected "Spouse Only" coverage, and that he subsequently completed a DD Form 2656 in conjunction with his retirement pay application, in which he again chose to participate in the SBP with a "Spouse Only" coverage election.  The DFAS gave no indication that the applicant had ever attempted to disenroll from the SBP.

8.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP coverage during the 1 year period between the second and third anniversary of the commencement of retired pay.  This provision of the law further stipulates that none of the premiums paid will be refunded and no annuity will be payable upon death, and that the participant's covered spouse or former spouse must consent to the withdrawal.  Termination is permanent and participation may not be resumed under any circumstance; future enrollment is barred.  Absent the loss of an eligible beneficiary, the law provides no provisions for terminating SBP coverage prior to the 2 year anniversary of commencement of retired pay, or after three years of receiving retired pay.  

9.  Title 10 of the United States Code, section 11452(a) (1) (B), provides the legal authority for reduction in retired pay for RCSBP participants.  It states, in pertinent part, that in the case of a participant in the RCSBP who provided coverage for an eligible beneficiary during a period before becoming entitled to receive retired pay, the retired pay of the participant shall be reduced by an amount prescribed under regulations by the Secretary of Defense to reflect the coverage provided under the Plan during the period before the participant became entitled to receive retired pay.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he never elected to enroll in the SBP and that he has continually tried to withdraw from the SBP was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  By law, RCSBP elections are irrevocable, except under specific circumstances identified by law that are not applicable in this case.  RCSBP elections automatically roll over into SBP elections upon the service member reaching age 60 and apply for retirement pay.  The law does provide one option to terminate SBP coverage during the one-year period between the second and third anniversary of the commencement of retired pay.  

3.  The evidence of record confirms the applicant completed a DD Form 1883 on 14 May 1993, in which he elected RCSBP coverage for "Spouse Only" under Option C (Immediate Coverage).  It also shows he submitted a DD Form 2656 on 
25 October 2000, in which he again elected “Spouse Only” SBP coverage.  His DFAS file gives no indication that he ever attempted to disenroll from the SBP.  

4.  The requirements of the SBP are fully explained at regularly scheduled 
pre-retirement orientations available before retirement.  They are also covered in Retirement Services Office briefings and publications that are widely available throughout the Army.  Further, the applicant signed the DD Form 2656 certifying that he was properly counseled on the terms of his SBP enrollment and on the termination procedures, which are clearly explained in Section XIII of the form.  

5.  Absent specifically defined conditions, such as disability or loss of an eligible beneficiary, the law provides no provisions for voluntary termination outside of this defined period.  As a result, given there was no error or injustice related to the applicant's SBP election, it would not be appropriate to grant the requested relief.  

6.  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.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___TSK _  __JLP  __  __DWT__  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.




      _____TSK                ____
                CHAIRPERSON




INDEX

CASE ID
AR20070015330
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
HD, 
DATE OF DISCHARGE
2002/10/20
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
137
2.

3.

4.

5.

6.


ABCMR Record of Proceedings (cont)                                         AR20070015330



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508