IN THE CASE OF:
BOARD DATE: 3 February 2009
DOCKET NUMBER: AR20080005868
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that his records be corrected to show that he did not elect to participate in the Reserve Component Survivor Benefit Plan (RCSBP).
2. The applicant states, in effect, that he never applied for or signed any forms requesting his participation in the RCSBP for an annuity to be paid to his children. He further states that he never thought the SBP was a good way to provide for his family if he died and chose insurance for that purpose. The applicant continues that he believes an administrative person signed him up for SBP coverage.
3. The applicant provides a letter from the Defense Finance and Accounting Service; a copy of a DD Form 1883 (Survivor Benefit Plan Election Certificate); a memorandum of Notification of Eligibility for Retired Pay at age 60 from the Army National Guard Bureau; and a copy of Orders Number P03-683366 from The United States Army Human Resources Command (U.S. AHRC), St. Louis, Missouri in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 13 February 1946. The applicant's record shows he served in the Alabama Army National Guard (ALARNG) from 12 June 1970 through 13 February 2006.
2. The applicant's records contain a DD Form 1883, dated 28 December 1987. This document shows in Section II (Marital, Dependency, and Election Status) that the applicant elected RCSBP coverage for "Children Only" under Option C (Immediate Coverage). Section VI (Signatures) shows the form was signed by an individual identifying himself as the retiree. The signature is consistent with applicant's signature as it appears elsewhere in his file such as his Official Evaluation Reports.
3. The applicant was separated from the ALARNG on 13 February 2006 under the provisions of National Guard Regulation 600-101, paragraph 10-2a(3) by reason of attaining the age of 60 for retirement.
4. U.S. AHRC, St. Louis, Orders Number P03-6833366, dated 28 March 2006, placed the applicant on the Retired List, effective 1 March 2006. He was retired in the pay grade of Chief Warrant Officer Four (CW4).
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 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. Elections are made by category, not by name. Elections are permanent and irrevocable except as provided for by law.
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 SBP. 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.
7. Title 10, U.S. Code, section 1452(b)(3) states, in the case of an RCSBP participant who provided child-only coverage during a period before the participant becomes entitled to receive retired pay, the retired pay of the participant shall be reduced by an amount prescribed to reflect the coverage
provided during the period before the participant became eligible for retired pay and is made without regard to whether there is an eligible dependent child during a month for which the reduction is made.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he never applied for or signed any forms requesting his participation in the RCSBP was carefully considered. However, there is insufficient evidence to support this claim.
2. Without evidence to show that the DD Form 1883 was fraudulently prepared, there is a presumption of regularity that the form was properly completed and it must be presumed that the applicant elected SBP coverage.
3. If the applicant believes that the DD Form 1883 was prepared under fraudulent conditions, he should contact the appropriate law enforcement agency or department.
4. 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
___x____ __x_____ ___x____ 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.
__________x____________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
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