IN THE CASE OF:	  

		BOARD DATE:	       23 April 2009

		DOCKET NUMBER:  AR20080011187 


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 reconsideration of his application to have his Reserve Component Survivor Benefit Plan (RCSBP)/Survivor Benefit Plan (SBP) election changed from an annuity base amount of $900.00 to an annuity based on full retirement pay.  He also requests that the cost of the RCSBP/SBP remain at the current monthly rate of $28.71.

2.  On 27 January 2009, the applicant provided a written statement in which
he indicated that he had made a decision to accept the change to full coverage even though he understood the Board’s inability to affect costs related to the RCSBP.  He requested, in effect,:

	a.  that his initial request be modified by deleting that portion of his request pertaining to him continuing to pay the current monthly rate of $28.71 for an increased annuity based on full retirement. 

   b.  a waiver for the recoupment of the debt that will be established as a result of changing his election to an annuity based on full retirement pay.

3.  The applicant states that the letter from S____ H. W____ shows the error in his election was due to misinformation from the U.S. Army Human Resources Command, St. Louis, Missouri (HRC-STL).  

4.  In his modified application the applicant states he does not believe he should be held liable for paying a retroactive amount for benefits that he was not entitled to receive.  He purchased secondary term insurance to cover the difference in benefits based on the erroneous information provided at the time of his initial entry in the SBP.

5.  The applicant provides copies of an 18 June 2008 letter from S___ H. W____, Chief, Transitions and Separation, HRC-STL, and letters from the Defense Finance and Accounting Service (DFAS).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080002445 on 11 June 2008.

2.  The applicant now provides a new argument in support of his previous request that requires reconsideration.  

3.  On 21 October 1994, the applicant was issued a 20-year letter certifying his eligibility for retired pay at age 60.  On 30 December 1994, he completed a DD Form 1883 (SBP Election Certificate) in which he elected RCSBP, Option C (immediate coverage) for the reduced annuity base amount of $900.00 (which means his wife would immediately receive 55 percent of $900.00 when he dies).

4.  The applicant continued to serve as a U.S. Army Reserve officer and was promoted to colonel on 29 February 2000.

5.  On 5 March 2006, the applicant submitted a DD Form 2656-9 (SBP and RCSBP Open Enrollment Election) in which he opted to change his RCSBP election to coverage based on full base amount, and to change his immediate annuity to deferred annuity (Option B).

6.  In a letter dated 10 May 2006, the applicant was informed that his request for enrollment in the RCSBP Open Season was returned because he attempted to change his election from Option C to Option B.  In that letter the applicant was advised to correct the problem and upon receipt of the corrected form, his election would be accepted as a valid election and filed.  There is no evidence to show the applicant returned a corrected DD Form 2656-9.

7.  On 11 June 2008, this Board denied the applicant's request to correct his records.  The applicant was advised that while he had verified his Open Season election was filed and returned, he had not submitted any evidence to show that he was informed he should not resubmit his election form or that he could change his RCSBP option at age 60 to elect full coverage.  He was also advised that without evidence to show he was misinformed by Army officials who had the responsibility to provide RCSBP guidance to Soldiers, he had not shown that any error or injustice occurred in his case.

8.  The applicant submits a statement from S____ H. W____, Chief, Transition and Separations, HRC-STL, stating that, on 8 August 2006, during the "Open Season" period for SBP, the applicant contacted his office concerning increasing his coverage from Option C based on $900.00 to Option C based on full retired pay.  S____ H. W____ advised him not to use the Open Season enrollment for several reasons:  1) the applicant would retire at age 60 during the month of August 2007, he could increase his SBP coverage as a part of his retirement, 
2) enrollment via the Open Season required a 2-year "vesting" period before coverage would begin, and 3) enrollment under the Open Season would require that the applicant immediately pay for the additional coverage.  Based on the information provided by HRC-STL, the applicant elected not to change his plan during the Open Season.  S____ H. W____ and the applicant were notified after the Open Season closed that the applicant did not have the option to change his election at age 60.  S____ H. W____ recommended that the applicant apply to the ABCMR for the desired correction, assuming that an advisory opinion would be requested at which time he would advise the ABCMR of his error.  No opinion was requested and the applicant's request was denied.  S____ H. W____ states he is providing this statement to assist the applicant in an appeal of the prior ABCMR denial.

9.  In the preparation of this case for a review by the Board, the applicant was notified by the staff of the Board that a favorable action would probably result in the creation of a debt.  It was recommended that the applicant contact DFAS and obtain specific information concerning the cost for the increased coverage as well as if any retroactive costs that would result based on his request.  The applicant was advised to evaluate his options and inform the staff of the Board if he wished to continue his request as submitted, modify his request, or withdraw his request.

10.  The applicant obtained clarifying information from DFAS and advised the Board that he desired to modify his election, but he maintains that he was misinformed about the costs of electing the lesser annuity and that he does not believe he should be held liable for the $7,436.88 retroactive debt that will be established for benefits that he was not entitled to receive and in essence for which he has already paid for, due to purchase of secondary insurance coverage.  



11.  Title 10, U.S. Code, section 12731(a)(d), states in pertinent part, a Soldier is entitled upon application to retired pay computed under section 12739 of this Title if the Soldier is at least 60 years of age and has performed at least 20 years of qualifying service while a member of the reserve component of an armed force.  The Secretary concerned shall notify each Soldier who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the Soldier within 1 year after the Soldier completes that service.  The written communications shall include notice of the elections available to such persons under the SBP, the Supplemental SBP, and the effect of such elections.

12.  Public Law 95-397, the Reserve Component 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 member’s 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 member’s retired pay (costs for Option C being the more expensive).  Once a member elects either Options B or C for spouse, former spouse, or dependent children, that election is irrevocable, though certain exceptions are set forth in the statute.  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.

13.  The 2005 National Defense Authorization Act authorized changes to elections of SBP during an Open Season period to allow non-participating retirees or those who are participating at less than maximum coverage to enroll in SBP or increase their coverage during the Open Season period.  In pertinent part, it provides the following:
      
      a.  An Open Season beginning on 1 October 2005 and running through 30 September 2006.
      
      b. If a former service member is either (a) entitled to retired pay, or (b) would be entitled to retired pay under chapter 1223 of Title 10, U.S. Code (or chapter 67 of Title 10, U.S. Code, as in effect before 5 October 1994), but for the fact of being under 60 years of age, and
      
      c.  Is not participating in SBP (or RCSBP if applicable) and was previously eligible to elect SBP or RCSBP coverage, or
      
      d.  Is participating in SBP (or RCSBP if applicable) at less than the maximum level for a spouse or former spouse, or is providing child-only coverage.
      
      e.  An election by an eligible member shall be for a standard annuity even if that member had previously elected a reserve component annuity.  Any member who was previously a participant in SBP (or RCSBP if applicable), but elected to terminate participation under the provisions of section 1448a of Title 10, U.S. Code, is not eligible to make an election during this open enrollment period.
      
      f.  Elections Allowed:  There are two categories of elections allowed during this open enrollment period:
      
      	(1)  A member or former member who, on 30 September 2005, is otherwise eligible, but is not participating in SBP or RCSBP, may elect SBP (or RCSBP if applicable) for any type of coverage that member or former member would have been eligible to elect and declined, or failed to elect, at an earlier opportunity.
      
      	(2)  A member or former member who is participating in SBP or RCSBP at less than the maximum level for a spouse or former spouse, or had elected child-only coverage, may elect to add coverage, up to the maximum level for a spouse or former spouse.  In the case of a member or former member who had previously elected child-only coverage, the child-only coverage may be increased to an amount not to exceed the maximum base amount, or coverage for a spouse, or a former spouse who is the parent of that child, at a base amount not less than the amount provided for that child-only coverage may be added.  In addition, child coverage may be added to spouse or former spouse coverage previously in effect.
      
      g.  Open Enrollment Premiums:  Members must pay open enrollment premiums for elected coverage based on the number of years that have elapsed since the member's first opportunity to participate in the SBP.  The number of years that have elapsed generally begins on the date of the member’s first opportunity to participate in SBP or RCSBP.  For most members this will be the date of retirement.  However, under certain circumstances, the date may be different.


DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he did not elect full coverage at the time he initially elected RCSBP due to misinformation from the U.S. Army Human Resources Command, St. Louis, Missouri (HRC-STL).  

2.  The applicant is willing to pay the greater cost for the increased coverage but does not believe he should be held liable for paying a retroactive amount for benefits he was not entitled to receive.  

3.  The prior decisional document noted the applicant provided evidence to show he had submitted a DD Form 2656-9.  However, his Open Season election form was returned due to him making an unauthorized election.  (The applicant had already received the benefit of RCSBP coverage from 1994 and he is required to pay for that coverage).  Therefore, he could not change his immediate annuity election to a deferred annuity election.  

4.  The applicant has submitted a statement from the Chief, Transitions and Separations, HRC-STL, stating that he personally advised the applicant not to change his election under the Open Season believing that the applicant could make this election with his application for retired benefits.  This is new evidence warranting reconsideration of the case.

5.  Through no fault of the applicant, he was misinformed as to when he had an option to make changes to his RCSBP/SPB election.  Under normal procedures the applicant would not have been eligible to elect a greater benefit at the time he reached age 60.

6.  Therefore, it is appropriate to show that the applicant made an Open Season election to increase his RCSBP/SBP coverage to an annuity based on his full retirement pay.

7.  As stated in the previous decisional document related to the cost of the applicant's RCSBP/SBP election, these factors are set by law and the Board does not have the authority to modify or waive provisions of law.  Further, there are no equitable arguments in the applicant's favor.  The government error in this case lost him an opportunity and that opportunity can be restored.  The costs of exercising that opportunity are to be borne by the applicant just as they are borne by any other Soldier entering or increasing SBP coverage during an Open Season.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___X____  ____X___  ___X___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20080002445, dated 11 June 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that on 8 August 2006 the applicant increased his immediate RCSBP/SBP coverage to full pursuant to the Open Season then underway. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a waiver for recoupment of debt established as a result of a favorable decision.




      ___________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)                                         AR20080011187



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ABCMR Record of Proceedings (cont)                                         AR20080011187



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