IN THE CASE OF:	  

		BOARD DATE:	       10 MARCH 2009

		DOCKET NUMBER:  AR20080017777 


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 either his 1990 RCSBP (Reserve Component Survivor Benefit Plan) election be changed from Option C-Spouse Only-Reduced Annuity to Option A-Defer or that he be permitted to increase his Survivor Benefit Plan (SBP) coverage to an annuity based on the full amount of retired pay effective upon reaching age 60 without a concurrent change to the RCSBP coverage.

2.  The applicant states, in effect, that when he received his 20 year letter he was told his spouse would have no military privileges if he elected Option A under the RCSBP and died before reaching age 60.  As such he elected Option C under the RCSBP but at the reduced base amount of $300.00.  He states he was further told that he could elect a new base amount for SBP at age 60.  The applicant notes he was told again that he could elect full coverage for his spouse under the SBP when he applied for his pension at age 60.

3.  The applicant states that when he submitted his retirement package at age 60 he elected full SBP benefits.  However, when he began receiving his retirement annuity DFAS (Defense Finance and Accounting System) began collecting premiums for the full SBP election as well as a full premium for the RCSBP.  He states he contacted DFAS and they subsequently began collecting the proper premium for the RCSBP base amount of $300.00 but also reduced his SBP to a base amount of $300.00.

4.  The applicant provides a copy of a 2005 e-mail response to his inquiry regarding electing full coverage for his spouse under the SBP when he became eligible for a pension in “about 2 years.”

CONSIDERATION OF EVIDENCE:

1.  The applicant has been affiliated with the United States Army since 1966, first as an enlisted Soldier and then as an officer.  On 22 June 1990 the applicant executed a DD Form 1883 (Survivor Benefit Plan Election Certificate).  He indicated that he was electing spouse only coverage under Option C (immediate coverage) but at a reduced annuity based on $300.00 of his retired pay.  The DD Form 1883, which the applicant and his wife both authenticated, notes on the form that “the decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully.”

2.  According to the copy of the e-mail, provided by the applicant in support of his request to this Board, on 1 November 2005 he submitted an e-mail to an Actuary in the Department of Defense Office of the Actuary at DHRA (Defense Human Resources Activity) noting that he (the applicant) was a “gray area retired reservist” who would become eligible for benefits “in about 2 years” when he reached age 60.  The applicant indicated that when he received his “20 year letter” he elected RCSBP Option C at the reduced base amount of $300.00.  He states that DFAS had told him that when he applied for retired pay at age 60 he could “elect full coverage for my spouse under the SBP plan and will be covered immediately for the increased coverage.”  The applicant asked in his e-mail “is this true?”  He noted that he had not seen any discussion of this possibility in any of the open season information and asked that if the increased coverage was possible at pension time, why someone in his situation would want to pay extra premiums to enter during open season when the survivor benefits would become available about the same time, (i.e. two years from date of election made during an Open Season).

3.  On 29 April 2008 the applicant reached age 60 and was placed on the retired list in the rank of lieutenant colonel and authorized retired pay.

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 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 had the member died prior to age 60.  

5.  Public Laws, enacted since the applicant executed his DD Form 1883, established various Open Season periods for the SBP.  In most cases those open seasons permitted eligible Soldiers to increase their coverage.  Those laws also required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must pay monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  Extensive publicity for the various Open Season periods was given in Army Echoes.  

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  It is unfortunate that the response to the applicant’s 2005 e-mail inquiry was incorrect and the applicant was told he could make a new SBP election upon reaching age 60.  He could not.  He could only either increase his coverage because he was in an Open Season or pay for the coverage back to the time of his 1990 election, or he could stay with the reduced coverage.  The applicant suspected what he was told was too good to be true and it was.  The government error in this case does not, however, entitle the applicant to a windfall in the form of increased coverage that he does not have to pay for.

3.  The applicant’s election to participate in the RCSBP was an irrevocable decision which rolled over into the SBP upon his reaching age 60.  No changes could be made upon his application for retired pay.  

4.  The evidence presented does demonstrate the existence of error on the part of the government.  However, the relief the applicant seeks would either totally absolve him of responsibility for paying RCSBP premiums or unfairly advantage him over other similarly situated RCSBP/SBP participants who pay the full cost of both coverage as required by law.  Therefore, the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

5.  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

____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)                                         AR20080017777



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017777



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1