IN THE CASE OF:	  

		BOARD DATE:	        05 MARCH 2009

		DOCKET NUMBER:  AR20080013828 


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 deductions from his retired pay for the Reserve Component Survivor Benefit Plan (RCSBP) be stopped.

2.  The applicant states that his DFAS [Defense Finance and Accounting Service]-CL 7220 (Retiree Account Statement) shows a monthly deduction of $23.42 for the RCSBP cost, and that when he called the DFAS to question this deduction, they agreed that it could be a discrepancy after looking at his service record.  He also states, in effect, that his service in the Oklahoma Army National Guard (OKARNG) was continuous from 1973 until he retired on 31 July 2008, and that he reached age 60 on 8 July 2008.  He further contends that a DFAS representative that he talked to said that since he was never in a non-pay status, he should not be charged this RCSBP premium.  He also reiterates that he went from being a drilling National Guard Soldier to a retired Soldier at age 60, and had never been in the Retired Reserve.

3.  The applicant provides his NGB Form 22 (National Guard Bureau [NGB] Report of Separation and Record of Service) that was issued on 31 July 2008; orders, dated 23 May 2008, that retired him and placed him on the retired list on 8 July 2008; orders, dated 1 May 2008, that separated him from the OKARNG on 31 July 2008; his NGB Form 23B (Army National Guard Retirement Points History Statement), dated 13 August 2008; and his DFAS-CL 7220 for his new retired pay due on 2 September 2008 in support of this application.



CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he was inducted into the Army of the United States on 21 April 1970, honorably released from active duty on
23 November 1971, and transferred to the United States Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  On 1 February 1973, he enlisted in the OKARNG and on 17 June 1974 he was appointed a commissioned officer in the OKARNG.

2.  In a memorandum, dated 13 November 1991, the applicant was notified of his eligibility for retired pay at age 60.  Enclosed with this memorandum was an RCSBP summary.  At that time the applicant had two minor daughters.  On
14 December 1991, the applicant completed a DD Form 1883 (Survivor Benefit Plan Election Certificate), elected full RCSBP coverage for his children, and indicated that he was not married.  He also elected Option C (Immediate Coverage).  This document was properly witnessed and contained the following statement:  "IMPORTANT:  The decision you make with respect to participate in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully.”

3.  On 8 July 2008, the applicant reached age 60 and he was retired from the OKARNG on 31 July 2008.

4.  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 (and participate in the RCSBP), 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 RCSBP 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 he begins receiving retired pay.  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 RCSBP election at age 60.  They cannot cancel RCSBP participation or change options they had in RCSBP – it automatically rolls into RCSBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the RCSBP to cover the additional benefit and assured protection should the member have died prior to age 60.


5.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that deductions from his retired pay for the RCSBP should be stopped.

2.  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.

3.  It is clear that the applicant completed a DD Form 1883 on 14 December 1991 electing full RCSBP coverage for his minor children.  At the time, he had three options to choose from, two of which were irrevocable, and he chose to enroll in the RCSBP Option C with immediate full children coverage.  Based upon his election of Option C, had the applicant died prior to reaching age 60, his children would have been eligible to receive full RCSBP entitlements.  At the time, he chose an irrevocable option when he enrolled in RCSBP on
14 December 1991.

4.  There is no evidence in the available records, and the applicant has not provided sufficient evidence which shows that he was not properly advised about the potential consequences of choosing the various options of the RCSBP when he made his initial election for enrollment.  Based on the foregoing, there is insufficient evidence to grant the applicant's request for terminating enrollment in the RCSBP in this case.

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)                                         AR20080013828



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ABCMR Record of Proceedings (cont)                                         AR20080013828



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