IN THE CASE OF:	  

		BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090004231 


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 military records be corrected by canceling his Survivor Benefit Plan (SBP) election for spouse coverage.

2.  The applicant states that when he retired in 1993 he was never told he had a time limit on withdrawing from the SBP.  He contends that his wife consents with his decision to withdraw from the SBP.  

3.  The applicant provides a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 16 April 1993; an undated DA Form 4240; a DD Form 1883 (SBP Election Certificate), dated 10 September 1979; and a DD Form 2656-2 (SBP Termination Request) in support of his application.  

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 was born on 9 September 1933.  He enlisted in the Army National Guard on 7 March 1952.  He married on 13 November 1954.  

3.  On 10 April 1973, the applicant received his notification of eligibility for retired pay at age 60 (his 20-year letter).  The applicant’s DD Form 1883, dated 
10 September 1979, shows he enrolled in the Reserve Component SBP (RCSBP) for spouse and children coverage, full base amount, Option C (immediate coverage).  Section II of this form stated, “IMPORTANT:  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.”   

4.  The applicant turned age 60 on 9 September 1993.

5.  On 30 September 1993, the applicant was honorably discharged from the Army National Guard for attainment of maximum allowable age.

6.  In support of his claim, the applicant provided a blank DD Form 2656-2 which states, in pertinent part, that a participant in SBP may elect to discontinue participation during the 25th through the 36th month after commencement of payment of retired pay.

7.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

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.  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, and RCSBP coverage automatically rolls into SBP coverage.

9.  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.  Members retired for more than two years as of 17 May 1998 were authorized a one-year opportunity (17 May 1998 through 16 May 1999) to disenroll.  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.  Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s DD Form 1883 shows that he enrolled in the RCSBP for spouse and children coverage on 10 September 1979.  That was an irrevocable election that rolled over into the standard SBP upon reaching age 60.  Therefore, there is no basis for granting the applicant’s request.   

2.  The applicant's contention that when he retired in 1993 he was never told about a time limit on withdrawing from the SBP was noted.  However, the option to terminate SBP participation was established in November 1997 and in 1998 Army Echoes would have informed him of the initial SBP termination dates and his option to disenroll from the SBP during the period 17 May 1998 through 
16 May 1999. 

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)                                         AR20090004231





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ABCMR Record of Proceedings (cont)                                         AR20090004231



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