IN THE CASE OF:	

		BOARD DATE:	       19 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017441 


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 his records be corrected to show he declined to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states he originally elected participation in the Reserve Component Survivor Benefit Plan (RCSBP) in 1991 when he was married to his former spouse.  He states he elected "Option C" coverage.  He states he was divorced in May 2003 and that his former spouse did not file for benefits under established guidelines.

3.  The applicant states that he remarried in September 2006 and that he and his current spouse do not want to participate in the SBP.  He states that he simply cannot afford the SBP deduction from his Reserve retired pay.  He contends that he was "advised the SBP is not in place and therefore request SBP be cancelled."

4.  The applicant provides a copy of his February 1992 Notification of Eligibility for Retired Pay at Age 60, a copy of a November 2007 letter from the Defense Finance and Accounting Service (DFAS) stating that his former spouse did not file a deemed election with U.S. Military Retired Pay within 1 year of the divorce and is therefore not eligible for the benefit, documents associated with his divorce, a copy of his current marriage certificate, a copy of his retired pay account, a copy of his July 2008 DD Form 2656 (Data for Payment of Retired Personnel), and a 15 September 2008 letter to DFAS questioning the date of birth (DOB) reflected for his spouse in the SBP Coverage portion of his retiree account statement.
CONSIDERATION OF EVIDENCE:

1.  Documents available to the Board indicate the applicant was notified in February 1992 that he had attained sufficient service to be eligible for retired pay on application at age 60.  That same letter provided him with information regarding entitlement to participation in the RCSBP and the requirements to elect participation.  According to his 8 September 2008 summary of retired pay account which he provided in support of his application to the Board, the applicant elected RCSBP on 22 October 1992 and elected to cover his spouse and children including the supplemental benefit.

2.  In May 2003 the applicant was divorced.

3.  The applicant was transferred to the Retired Reserve effective 5 June 2006 and on 22 September 2006 he remarried.

4.  According to the 23 November 2007 letter from DFAS to the applicant, the applicant’s court order stated that the "plaintiff shall take all necessary steps to ensure that defendant is made eligible to receive a survivor’s annuity under his military pension, if such an annuity is available to her."  The letter indicated that the applicant’s former spouse did not file a deemed election within 1 year of the divorce and as such "she is not eligible for this benefit."  It noted that "accordingly, the establishment of former spouse SBP coverage cannot be authorized upon the basis of a deemed election request unless or until there is first obtained a modified court order.  If a modified order were obtained, then your former spouse would have 1 year from the date the modified order is entered to make a deemed election."

5.  On 17 July 2008, upon attaining age 60, the applicant completed a DD Form 2656.  That portion of the form pertaining to an SBP election indicates the applicant elected "coverage for spouse only" based on "full gross pay."  He noted that his former spouse had not applied for SBP "during the 1 year from date of divorce."

6.  On 15 September 2008 the applicant forwarded a letter to DFAS noting a discrepancy on his retiree account statement.  He indicated that the statement reflected his former spouse’s DOB in the SBP Coverage portion rather than his current spouse.  He indicated he was divorced in 2003 and that his former spouse had not applied for benefits.

7.  The applicant’s retiree account statement noted that his SBP cost effective 8 September 2008 was $144.07 and that the coverage was for "spouse only."

8.  The applicant initiated his request to this Board on 28 September 2008.

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 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 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.

10.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a 1-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 will continue to have the Reservist Portion cost deducted from their retired pay.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant admits that he elected to participate in option of C of the RCSBP when he initially received his 20-year letter.  The evidence provided to the Board also suggests that he intended to continue participation in the SBP at the time he applied for retired pay in 2008 upon reaching age 60.  The fact that he completed the election portion of his DD Form 2656 supports this conclusion.  An RCSBP election of either options B or C, once made, is irrevocable and rolls over into the SBP.

2.  The fact that the applicant now maintains that the cost of the SBP is no longer affordable is not a basis to grant the relief requested.
3.  However, as the applicant became eligible to draw retired pay on 13 July 2008, effective 1 August 2008, and he will have a 1-year period in which to terminate his SBP enrollment beginning on 1 August 2010.  He is encouraged to contact the nearest Retirement Services Officer prior to making his decision for more information.

4.  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

________  ________  ________  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.



      _________________________
                 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)                                         AR20080017441



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ABCMR Record of Proceedings (cont)                                         AR20080017441



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