IN THE CASE OF:	  

		BOARD DATE:	  7 May 2009

		DOCKET NUMBER:  AR20080019548 


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 that his Reserve Component Survivor Benefit Plan (RCSBP) election of Option B (beneficiary to receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday) be changed to show he declined RCSBP at age 60.

2.  The applicant states he was told on 9 April 1992 that his election to participate in the RCSBP could be changed prior to his receiving his retirement pay at 
age 60.  He states that when he received his paper work for his retired pay he completed the form and elected not to take the RCSBP.  He states he would also like to be reimbursed for any deductions of his pay taken out for RCSBP until his record is corrected.

3.  The applicant provides, in support of his application, copies of his 20-year letter, a DD Form 1883 (Survivor Benefit Plan Election Certificate), his discharge orders from the U.S. Army Reserve (USAR), his DD Form 2656 (Data for Payment of Retired Personnel), and his orders placing him the Retired List.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he was inducted on 22 May 1970.  After serving 1 year, 6 months, and 3 days of honorable active service he was released from active duty.  He served 4 months and 24 days in the New York Army National Guard in 1973.  He then enlisted in the USAR on 1 May 1975 and served continuously until his discharge.

2.  On 28 December 1991, the applicant was notified he had completed the required years of service to be eligible for retired pay on application at age 60.

3.  On 31 March 1992, the applicant completed a DD Form 1883.  He elected to provide an annuity, based on the full amount of his retired pay, for his spouse only.  He elected that the annuity be provided beginning on the 60th anniversary of his birth should he die before that date or on the day after date of death should he die on or after his 60th birthday (Option B).  The applicant's spouse concurred with the election.  The applicant's date of birth indicated on the form is 
15 November 1948.

4.  The DD Form 1883 includes the note "The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision."

5.  On 30 November 2002, the applicant was reassigned in the USAR to the USAR Control Group (Reinforcement [REINF]).  On 3 December 2002, he was discharged from the USAR.  On 28 May 2003, he was released from the USAR Control Group (REINF) and assigned to the Retired Reserve.  

6.  On 31 August 2007, the applicant completed a DD Form 2656.  On the form, he elected not to participate in the SBP.  His spouse concurred with the election.

7.  The applicant turned age 60 on 15 November 2008.

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.  Spousal notification was required only if the member elected to participate in the RCSBP for less than full spouse coverage.  

9.  Title 10 USC Section 1448(a)(4) (Reserve-component annuity participants) provides that elections made under the RCSBP are irrevocable if not revoked before the end of the 90-day period beginning on the date of notification of completion of years of service required for eligibility for reserve component retired pay.

10.  Title 10 USC Section 1448a (Election to discontinue participation: one-year opportunity after second anniversary of commencement of payment of retired pay) provides for the discontinuance of participation in the SBP.  An election to discontinue participation in the SBP may be made at any time during the 1-year period beginning on the second anniversary of the date on which payment of retired pay to the participant commences.  Concurrence of the participant's spouse is required.   

DISCUSSION AND CONCLUSIONS:

1.  When the applicant completed the DD Form 1883 on 31 March 1992 he had elected to provide an annuity based on the full amount of his retired pay and that if he died prior to age 60 this annuity would be paid beginning on the 60th anniversary of his birth.  Title 10 USC Section 1448 clearly states that elections under the RCSBP are irrevocable if not revoked before the end of the 90-day period from the date the individual is notified that he has completed the required amount of service for retired pay.  Further, the DD Form 1883 clearly informed the applicant that his election was irrevocable.  Therefore, in this case, there were no provisions for the applicant to change his election to participate in the RCSBP at age 60.

2.  Title 10 USC Section 1448a allows the applicant to withdraw from the SBP during the 1 year period from the second anniversary of the date of his receiving retired pay.  Spousal concurrence will be required.  The applicant should contact the Defense Finance Accounting Service for forms and procedures in making this decision.

3.  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 that requirement.

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)                                         AR20080019548





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080019548



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1