IN THE CASE OF:	  

		BOARD DATE:	  26 August 2009

		DOCKET NUMBER:  AR20090004423 


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 his military records be corrected by changing his Survivor Benefit Plan (SBP) election for spouse coverage, option C (Immediate coverage) to spouse coverage, option B (Age 60).

2.  The applicant states, in effect, that he received his retirement papers in the mail, that the retirement packet included the ARPERCEN (Army Reserve Personnel Center) Pamphlet 135-2 and a DD Form 1883 (SBP Election Certificate), and that he was not provided any counseling on the cost of the various SBP options.  He claims that the cost of option B was available and understandable but no such cost figures were available for option C.  He would like to change his annuity to option B due to financial hardship. 

3.  The applicant provides a Retiree Account Statement, a document pertaining to the SBP and monthly amounts, a DD Form 1883, and an excerpt from ARPERCEN Pamphlet 135-2 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 26 July 1947.  Having prior active service in the Regular Army and inactive service in the Army National Guard and the U.S. Army Reserve (USAR), the applicant was appointed a second lieutenant in the USAR on 19 May 1975.  He entered active duty on 16 October 1981 and was released from active duty on 1 January 1986.  

3.  The applicant's DD Form 1833, dated 21 September 1990, shows he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse only coverage, option C, full base amount.  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 was honorably discharged from the USAR in the rank of captain on 29 November 1990.  

5.  The applicant turned age 60 on 26 July 2007.

6.  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.

7.  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.

8.  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.  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:

The applicant's contentions were carefully considered.  However, the applicant’s DD Form 1883 shows that he enrolled in the RCSBP for spouse coverage, option C, on 21 September 1990.  That was an irrevocable election that rolled over into the standard SBP upon reaching age 60.  Had he died prior to age 60 his spouse would have received an annuity.  The applicant must now pay for that coverage.  He may withdraw from the SBP any time from now until July 2010 with his spouse's consent.  No premiums will be refunded and RCSBP deductions will continue.  Therefore, 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.



      _______ _   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)                                         AR20090004423



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ABCMR Record of Proceedings (cont)                                         AR20090004423



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