IN THE CASE OF:	  

		BOARD DATE:	        24 MARCH 2009

		DOCKET NUMBER:  AR20080012542 


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 the deductions being made from his Retired Pay for Survivor Benefit Plan (SBP) premiums be stopped. 

2.  The applicant states, in effect, that at the time of his application for retired pay, he elected not to participate in the SBP; however, SBP premiums are being deducted from his Retired Pay and he requests that the deductions stop.

3.  The applicant provides no additional documentation in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  On 14 March 1967, the applicant enlisted in the Regular Army in Brooklyn, New York, for 3 years, in the pay grade of E-1.  He successfully completed his training as a teletype repairman.

2.  After completing 3 years of total active service, the applicant was honorably released from active duty on 13 March 1970 and he was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  The highest rank/grade he held at the time of release from active duty was sergeant (SGT)/E-5.




3.  The applicant reenlisted in the USAR for 6 years on 9 July 1976 and he was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 January 1977.  He enlisted in the New York Army National Guard (NYARNG) for 3 years on
14 October 1982.  On 11 October 1988, the applicant reenlisted in the USAR for 6 years and he again reenlisted in the USAR for 6 years on 25 May 1994.

4.  The applicant was a member of the USAR on 17 February 1995, when he was issued a Notification of Eligibility for Retired Pay at age 60 (20-year letter).  The notification informed him that he would be eligible for retired pay upon application at age 60 (25 May 2008).

5.  On 30 August 1995, the applicant completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) in which he elected spouse only coverage, Option C at the full base amount.  Immediately below his election is a statement informing the applicant that the decision he made regarding participation in the SBP was a permanent irrevocable decision.

6.  After completing 27 years, 1 month, and 16 days of total inactive service, and 3 years, 2 months, and 16 days of total active service, the applicant reenlisted in the USAR for 6 years on 2 April 2000.

7.  The applicant was placed on the retired list on 25 May 2008 (at age 60) and premiums are now being deducted from his retired pay for both RCSBP and SBP.

8.  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 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 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.

9.  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 continue to have the Reservist Portion cost deducted from their retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that on the date of his retirement, he elected not to participate in SBP.  His contentions have been noted; however, prior to making that election, the applicant enrolled in the RCSBP for spouse coverage at the  full base amount in 1995, which has remained in effect by automatically rolling over into the SBP at age 60.  Further, had the applicant died prior to reaching age 60, his wife would have received an annuity.  The applicant must now pay for the RCSBP coverage.

2.  The evidence of record clearly shows that at the time the applicant made his RCSBP election, the statement regarding the SBP election being a permanent irrevocable decision was present on the form.

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.

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.  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.



      ________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)                                         AR20080012542



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ABCMR Record of Proceedings (cont)                                         AR20080012542



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