IN THE CASE OF:	  

		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20080018531 


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 essentially states that he initially enrolled in the RCSBP in August 1993, but that in January 2008, he filled out his retirement package and declined to participate in the RCSBP, and that his last election should be used.

3.  The applicant provides a self-authored letter, dated 29 October 2008 and a DD Form 2656 (Data for Payment of Retired Personnel) that he completed on 
6 May 2007 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant, who previously served in the Regular Army and was a member of the Army National Guard, was notified in a memorandum, dated 5 August 1993, of his eligibility for retired pay at age 60.  Enclosed with this memorandum was an SBP summary.  On 21 August 1993, the applicant completed a DD Form 1883 (Survivor Benefit Plan Election Certificate), elected full SBP coverage for his spouse, and indicated that he had no dependent children at the time.  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." 

2.  On 16 June 2008, the applicant reached age 60.  In his self-authored letter, dated 29 October 2008, he essentially stated that his July 2008 retirement check had a deduction for SBP.

3.  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; (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.

4.  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.

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 21 August 1993 electing full SBP coverage for his spouse.  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 spouse coverage.  Based upon his election of Option C, had the applicant died prior to reaching age 60, his spouse would have been eligible to receive full SBP entitlements.  At the time, he chose an irrevocable option when he enrolled in SBP on 21 August 1993.  However, he is not precluded from terminating his SBP participation beginning on the second anniversary of the date his retired pay started, provided his spouse concurs.  He should understand that he will still have to pay the RCSBP portion cost for the protection his spouse would have received had he died before reaching age 60.

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 SBP when he made his initial election for enrollment.  Based on the foregoing, there is insufficient evidence to grant the applicant's request for terminating his 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.






      __________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)                                         AR20080018531



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ABCMR Record of Proceedings (cont)                                         AR20080018531



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