RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 11 June 2008
DOCKET NUMBER: AR20080001527
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.
Director
Analyst
The following members, a quorum, were present:
Chairperson
Member
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 that his Reserve Component Survivor Benefit Plan (RCSBP) coverage be cancelled.
2. The applicant states that he was led to believe that he could cancel his RCSBP at any time.
3. The applicant provides a DD Form 2656-5 (RCSBP Election Certificate), dated 16 April 2004.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was born on 12 March 1966. He enlisted in the Army National Guard (ARNG) on 3 March 1984. He was promoted to Sergeant First Class on
18 September 1997. His notification of eligibility for retired pay at age 60 (his
20-year letter) was dated 31 March 2004.
3. On 16 April 2004, he completed a DD Form 2656-5 electing to enroll in the RCSBP for spouse and children coverage, full base amount, Option C. The DD Form 2656-5 stated, INSTRUCTIONS: A decision to participate, that is to select either Option B or C, is permanent and cannot be changed unless authorized by law, such as the opportunity to terminate your participation during the period that is between your 62nd birthday and the day before you reach age 63 at which time you may elect to discontinue participation."
4. The applicant's records contain a memorandum from the Military Department Washington ARNG, dated 20 May 2004, that shows he was extended in an Army Guard Reserve (AGR) status until 30 September 2007.
5. 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 (and participate in SBP), 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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Once a member elects either option B or C in any category of coverage, that election is irrevocable. 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.
6. 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 the SBP. The spouses 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 contends that he was led to believe that he could cancel his RCSBP at any time. However, if he had any questions, the applicant, a senior noncommissioned officer, had a responsibility to himself to obtain information on the RCSBP prior to signing any document presented to him. The instructions on the DD Form 2656-6 specifically stated at the time he made a selection to participate that it was permanent and could not be changed unless authorized by law.
2. The evidence of record shows that the applicant will reach age 60 and eligibility for retired pay on 12 March 2026. 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.
3. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__xxx__ __xx ___ ___xxx__ 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.
____ xxxxxxxxxx ____
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20080001527
4
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BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
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