IN THE CASE OF:	  

		BOARD DATE:	  10 September 2009

		DOCKET NUMBER:  AR20090007147 


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, correction of his records to show he submitted a request to enroll his spouse in the Survivor Benefit Plan (SBP) prior to applying for retired pay at age 60.

2.  The applicant states that after receiving his retirement orders in October 2008, he called an official at the Military Personnel Retiree Center, MacDill Air Force Base, FL, and was informed that he should wait until his effective date to initiate issuance of an identification card and be briefed on all retirement-related issues.  He adds that he was also informed he could change his SBP election after his 60th birthday but realized during the retirement briefing that this is not the case and that the SBP was his best option.  He concludes that he was told his decision could be reversed through application to this Board.

3.  The applicant provides a copy of an incomplete DD Form 2656 (Data for Payment of Retired Personnel), dated 8 April 2009, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 3 April 1949.

2.  Having had prior enlisted and warrant officer service, the applicant's records show he was appointed as a first lieutenant in the U.S. Army Reserve and executed an oath of office on 6 June 1981.

3.  The applicant's records also show he served in various command and staff positions throughout the United States and attained the rank of major (MAJ) on 31 August 1997.

4.  On 28 October 1998, the U.S. Army Reserve Personnel Command (now known as the U.S. Army Human Resources Command, or USAHRC) issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  This letter also notified the applicant that he was entitled to participate in the Reserve Component SBP (RCSBP) and that by law, he had only 90 calendar days from the date he received this letter to submit his SBP Election Certificate.  If he did not submit his election within 90 days, he would not be entitled to survivor benefit coverage until he applies for retired pay at age 60.

5.  There is no indication in the applicant's records that he elected to participate in the RCSBP during his 90-day window of opportunity in 1998.

6.  The applicant's records further show that he completed a DD Form 2656 on 13 September 2007.  He indicated that he was married but elected not to participate in the SBP.  He authenticated this form by placing his signature and date in the appropriate block.  Additionally, his spouse concurred with his election and also authenticated this form by placing her signature and date in the appropriate blocks.

7.  On 21 October 2008, USAHRC published Orders P10-816298 placing the applicant on the Retired List in his retired grade of MAJ effective 3 April 2009, the date he turned 60.

8.  The applicant submitted a copy of a DD Form 2656, dated 8 April 2009, in which he elected spouse coverage based on the full amount.  However, this form was completed after he retired on 3 April 2009.

9.  Public Law 92-425 enacted 21 September 1972 established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.  An election must be made prior to the effective date of retirement.  Since its creation, it has been subjected to a number of substantial legislative changes.

10.  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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applied for retired pay and elected to participate in the standard SBP.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he submitted a request to enroll his spouse in the SBP program prior to applying for retired pay at age 60.

2.  Soldiers who complete 20 or more years are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt.  The applicant's records do not indicate that he elected to participate in the RCSBP.  The applicant, by not responding to his 20-year letter notification of RCSBP eligibility, effectively deferred his election to age 60.  His 20-year letter informed him that he would not be entitled to survivor benefit coverage until he applied for retired pay.

3.  The evidence of record shows that prior to his retirement, the applicant was provided an opportunity to make an SBP election when he applied for retired pay and that he willingly and in writing, elected not to participate in the SBP.  His spouse, having been fully informed and counseled concerning the options available under the SBP for a survivor annuity, signed the form indicating that she was aware of his election.  There is neither error nor injustice.

4.  The applicant is urged to carefully read Army Echoes, the Army bulletin periodically sent to all retirees to keep them abreast of issues concerning them.  The applicant will have the opportunity to elect to participate in the SBP if Congress declares an Open Season.  Such Open Seasons are highly publicized in Army Echoes.

5.  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 did not submit evidence which would satisfy this requirement.  Therefore, he is not entitled to the requested relief.

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)                                         AR20090007147



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ABCMR Record of Proceedings (cont)                                         AR20090007147



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