IN THE CASE OF:	  

		BOARD DATE:	  	  12 November 2008

		DOCKET NUMBER:  AR20080014058 


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, cancellation of his Reserve Component Survivor Benefit Plan (RCSBP) election.

2.  The applicant states, in effect, that the RCSBP election that he made should be cancelled because he mistakenly elected to enroll in the SBP.

3.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military service records show that his date of birth is 15 July 1948.  He was inducted into the U.S. Army and entered active duty on 3 June 1969, served in Vietnam from 1 May 1970 to 5 April 1971, was honorably released from active duty on 6 April 1971, and transferred to the U.S. Army Reserve (USAR), Control Group (Annual Training), U.S. Army Administrative Center (USAAC), St. Louis, Missouri, with a terminal date of Reserve obligation of 2 June 1975.

3.  On 2 May 1975, the applicant enlisted in the Army National Guard of the United States (ARNGUS) where he served until 13 April 1978.

4.  On 14 April 1978, the applicant enlisted in the USAR (Ready Reserve).  He was promoted to the rank of Sergeant First Class (SFC)/pay grade E-7, effective and with a date of rank of 20 February 1981.  The applicant was ordered to active duty in support of Operation Desert Shield/Desert Storm from 22 January 1991 to 8 May 1991.  He voluntarily transferred to the USAR (Individual Ready Reserve), USAAC, St. Louis, Missouri, effective 5 April 1993.

5.  On 8 June 1993, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  This letter informed the applicant, in pertinent part, that he was entitled to participate in the RCSBP established by Public Law 95-397, which enables him to provide an annuity for his spouse and other eligible beneficiaries.

6.  The applicant’s military service records contain a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate), dated 8 June 1993.  This document shows the applicant elected “Spouse and Children” coverage, based on the full amount of his retired pay, and Option C (Immediate Coverage).  Section II of the DD Form 1883 contains the statement, "IMPORTANT:  The decision you make with respect to participation in this Survivor Benefit Plan is a permanent and irrevocable decision.  Please consider your decision and its effect very carefully."  This document also shows that the applicant and his spouse, Lela M. W_______, signed the form on 8 June 1993.

7.  On 12 March 1997, the applicant was transferred to the Retired Reserve with
20 or more qualifying years of service for retirement.

8.  In the processing of this case, an official with the Defense Finance and Accounting Service (DFAS) provided information pertaining to the applicant's
DD Form 1883, dated 8 June 1993, that confirmed the applicant elected “Spouse and Children” coverage based on the full amount of his retired pay and Option C (Immediate Coverage).  The DFAS official also provided a copy of the applicant's DD Form 2656 (Data for Payment of Retired Personnel), dated 19 August 2006, that shows the applicant elected "Spouse only" coverage, indicated that he did not have any dependent children, and elected coverage based on the full amount of his retired pay.  The applicant signed the DD Form 2656 in Section XII (Certification), Item 32 (Member), block a (Signature); and the form was witnessed by a notary public.

9.  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 SBP), 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; or (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 Option B or Option 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.

10.  Title 10, United States Code, section 1448, provides that if a person makes an election not to participate in the SBP, the person's spouse shall be notified of that election.  Spousal concurrence is needed when a married person declines coverage, elects to provide an annuity for his/her spouse at less than the maximum level, or elects to provide an annuity for a dependent child(ren), but not for his/her spouse.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the RCSBP election he made on 8 June 1993 should be rescinded and his enrollment in the SBP cancelled because he mistakenly enrolled in the SBP.

2.  The evidence of record confirms that in 1993, upon becoming eligible to receive retired pay at age 60, the applicant elected RCSBP “Spouse and Children” coverage (based on the full amount of his retired pay) and Option C (Immediate Coverage), as evidenced by the DD Form 1883 he completed at that time.  In addition, the applicant's spouse indicated her concurrence with this SBP election by placing her signature on the document.  The SBP statute provides that an election, once made, is irrevocable, except as provided for by law. Moreover, the DD Form 1883 advised the applicant that the SBP election would be irrevocable.

3.  On 19 August 2006, in his application for retired pay, the applicant confirmed his SBP election of "Spouse only" coverage (i.e., he no longer had dependent children) based on the full amount of his retired pay.  Accordingly, the applicant's RCSBP properly rolled over into the SBP and the DFAS updated his coverage for the correct premium to be deducted from his retired pay.  Therefore, the applicant is not entitled to correction of his records to show that he rescinded his election to participate in the RCSBP or SBP.

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 evidence of record shows that the applicant attained age 60 and eligibility for retired pay on 15 July 2008.  The SBP statute states that retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP; however, the spouse's concurrence is required.

6.  The applicant is advised that he will have a one-year period during which he may opt to terminate SBP participation and withdraw from the SBP, beginning on the second anniversary of the date on which his retired pay started (i.e., 1 August 2010).  In support of that effort, a copy of DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request) is being provided to the applicant, along with this Record of Proceedings.  The applicant may also obtain a copy of this form via the Internet at:  http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm.

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)                                         AR20080014058



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ABCMR Record of Proceedings (cont)                                         AR20080014058



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