IN THE CASE OF:
BOARD DATE: 21 OCTOBER 2008
DOCKET NUMBER: AR20080010058
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 that his Survivor Benefit Plan (SBP) election be changed to reflect that he does not desire to participate in the SBP.
2. The applicant states, in effect, that in 1991 it was his intent not to participate in the SBP and he made the election to defer his election until his retirement. He goes on to state that it is impossible to make a wise, informed financial decision 17 years prior to retirement, and in 2006 he elected not to participate.
3. The applicant provides a copy of his 20-year letter and a copy of a DD Form 2656 dated 22 June 2006.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 16 May 1948 and enlisted in the United States Army Reserve (USAR) on 23 June 1971. He remained in the USAR through a series of continuous reenlistments and was promoted to the pay grade of E-8 on 13 February 1987.
2. On 9 December 1991, while serving as a Public Affairs Supervisor in Tampa, Florida, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). The 20-year letter notified him of his options under the SBP and informed him that if he did not make an election within 90 calendar days, he would not be allowed to obtain coverage until he applied for retired pay at age 60.
3. On 28 February 1992, the applicant made an election under Option B (spouse only) in which he elected that his beneficiary receive an annuity if he died before age 60, but delay payment of it until his 60th birthday.
4. On 25 April 1994, he was voluntarily transferred to the USAR Control Group (Retired).
5. The DD Form 2656 (Data for Payment of Retired Personnel) submitted by the applicant with his application shows that on 22 June 2006, the applicant elected not to participate in the SBP. However, the applicant was not eligible to make an election at that time because he was 58 years of age and also had made a previous, irrevocable election.
6. On 16 March 2008, when he submitted his request for retired pay at age 60, the applicant elected spouse full coverage under the SBP and on 16 May 2008, when he turned 60 years of age, he began receiving retired pay with SBP deductions for spouse only.
7. Public Law 95-397, the Reserve Component (RC) SBP, 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. If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the members retired pay (costs for option C being the more expensive). Once a member elects either Options B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in RCSBP it automatically rolls into SBP coverage. 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.
8. 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 spouses concurrence is required. No premiums will be refunded to those who opt to disenroll. Reservists who elected an option under the RCSBP continue to have the Reservist Portion cost deducted from their retired pay.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he opted not to participate in the SBP has been noted; however, prior to making that election, the applicant enrolled in the RCSBP under Option B, which was an irrevocable election and which has remained in effect by automatically rolling over into the SBP at age 60 retirement.
2. While the applicant has shown that he elected not to participate in the SBP in 2006, he was not eligible to make such an election at that time. His initial election of spouse only full coverage to be paid an annuity if he died before age 60, but delay payment of it until the date of his 60th birthday, was a permanent irrevocable decision.
3. Therefore, since he has failed to show that he was misinformed of his options under the SBP and since he has the option of terminating his SBP participation beginning on the second anniversary of the date on which his retired pay started, provided his wife concurs, there appears to be no basis to grant his request at this time.
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.
_________XXX_____________
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) AR20080010058
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ABCMR Record of Proceedings (cont) AR20080010058
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