IN THE CASE OF:	  

		BOARD DATE:	       23 October 2008

		DOCKET NUMBER:  AR20080009607 


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 correction of her record to show that she elected to not participate in the Reserve Components Survivor Benefit Plan (RCSBP).

2.  The applicant states that the instructions accompanying the Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) were misleading in that they did not make it clear that there would be no chance to change the election upon reaching age 60.  The situation has changed.  Her spouse has a cardiac condition and his life expectancy has changed.  He will not need the SBP benefit, but they need that money now for living expenses.  If the information about cancellation being restricted to the period during the 25th through the 36th month of retirement had been available in 2002, then she never would have elected option C.

3.  The applicant provides, in support of her application, an original DA Form 2656-2 SBP Termination Request [signed by both parties and witnessed]; copies of an SBP Fact Sheet bearing handwritten remarks and strikeouts; a four-page printout of SBP information from a Defense Finance and Accounting Service website, dated 25 May; her retirement orders, dated 3 March 2008; her DFAS-CL Form 7220 (Retiree Account Statement showing that the SBP monthly cost is $71.95 of which $20.71 is payment for the RCSBP; A DD Form 1883 (Survivor Benefit Plan Election Certificate, dated 6 August 2002; and her 25 March 2008 retirement orders.


CONSIDERATION OF EVIDENCE:

1.  The applicant, an Army Nurse Corps captain, received a 20-year letter dated 05 June 2002.  Among other things it included the following paragraph related to the RCSBP: 

"4.  Public Law 95-397, 30 Sep 1978, created the Reserve Components Survivor Plan (RCSBP) in which you are entitled to participate.  RCSBP is you sole means or protecting your retire pay entitlement.  NOTE: Public Law 106-396, 30 October 2000, requires that upon receipt of this letter, a qualified Reserve Component member, who is married, will automatically be enrolled in the RCSBP under Option C, Spouse and Child(ren) coverage based on Full Retire Pay, UNLESS spouse concurrence is provided to allow one of the following elections:

a.  Option A (defer enrollment until age 60 when you apply for retire pay).

   b.  Option B (enroll and pay for an annuity when YOU would have been age 60:

      (1)  Enroll spouse or spouse and children at LESS Than the maximum level.
	(2) Enroll children only.

   c.  Option C (enroll and pay an annuity immediately upon your death) but: 

(1)  Enroll spouse or spouse and children at LESS Than the maximum
   level.
		
   (2) Enroll children only."

2. That paragraph relating to the RCSBP ended with the following sentence: "You may contact this Command for answers to specific individual questions by dialing 1-800-318-5298, extension 4."

3.  The applicant completed the DD Form 1883 and selected Option C to provide full immediate coverage for her spouse.  Below item 9 the form states, "IMPORTANT:  The decision you make with respect to participation in the Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully."   
	   

4.  The applicant wrote on the SBP Fact Sheet, "BASED LIFE DECISION OPTION OF THIS INFORMATION.  DOES NOT STATE THERE WILL BE AN OPTION TO CHANGE ELECTION. MISLEADING  Would Never Have Signed Up If Better Informed."  

5.  Public Law 95-397, the Reserve Component SBP (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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.

6.  Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to Soldiers and former Reserve components Soldiers.  It explains that retired pay is pay granted Soldiers and former Reserve components Soldiers who have completed 20 or more years of qualifying service and have attained age 60.  Orders will be issued announcing the effective date eligible persons are entitled to retired pay.  Chapter 3 describes the RCSBP.  It clearly states that members who receive their 20-year letter have 90 days to elect to participate in the RCSBP and return the DD Form 1883.  Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60.

7.  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 apparent situation is unfortunate but the argument is not convincing.  She states that she would not have chosen Option C if she had been better informed; yet, the form the applicant filled out advised that the decision 


whether to participate is irrevocable and should be carefully considered.   The 
20-year letter provided a telephone number where additional information could be obtained.  Furthermore, she lived in a metropolitan area with a large military installation (Wright-Patterson Air Force Base) where counseling was undoubtedly available.        

2.  The applicant reports that she and her spouse based the decision on the SBP Fact Sheet and notes that it did not state that there would an option to change the election.  Yet, the presence or absence of such a statement seems to have no probative relationship to the applicant's choice.

3.  The SBP, as an insurance program, does not guarantee every participant will actually see a benefit in the form of an annuity.  It works as it was intended as a safety net for surviving spouses and other beneficiaries following the death of a former service members and the loss of income.  The applicant seems to feel that she received nothing from the money paid for the SBP premium, yet her spouse has been covered for over five years.  If the premiums for any insurance plan were refunded unless a claim was paid to the individual, there would be no sharing of the risk and the plan would be bound to fail.
 
4.  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.

5.  The applicant will be eligible to opt out in the year following her 62nd birthday.

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.

ABCMR Record of Proceedings (cont)                                         AR20080009607



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ABCMR Record of Proceedings (cont)                                         AR20080009607



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