BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090012273 


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 Survivor Benefit Plan (SBP) coverage be stopped.

2.  The applicant states that he is 65 years old and needs to pay 360 months before his wife would receive this benefit.  He adds that the amount of $51.37 has been deducted from his retired pay for the past 25 months.  In the meantime, his wife has been diagnosed with myeloma and is currently going through treatment.  He also states that he has to make 360 payments at which time neither he nor his wife would be alive.  The SBP program was not clearly explained to him.  He would like to stop the SBP coverage.

3.  The applicant did not provide any additional documentary evidence in support of his request.

4.  On 15 December 2009, the applicant submitted a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 17 January 1964; a copy of his NGB Form 22 (Report of Separation and Record of Service), dated 1 May 1991; and a copy of his Summary of Retired Pay Account, dated 31 December 2003, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was born on 31 December 1943 and enlisted in the Regular Army for a period of 3 years on 18 January 1961.  He was trained in and held military occupational specialty 112.07 (Light Weapons Infantryman).  He was honorably separated and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 17 January 1964 for completion of his Reserve obligation.

2.  On 12 June 1965, the applicant married his spouse.

3.  The applicant’s records also show he performed various periods of service in the USAR, U.S. Air Force Reserve, California Army National Guard (CAARNG), and the Arkansas Army National Guard.  He then enlisted in the CAARNG on 20 March 1975, entered active duty on 9 February 1976, and was honorably released from active duty on 2 July 1977.  He subsequently executed several extensions in the CAARNG and attained the rank/grade of first sergeant (1SG)/
E-8.

4.  On 21 December 1990, the Office of the Adjutant General, CAARNG, 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).

5.  On 7 January 1991, the applicant completed a DD Form 1883 (Survivor Benefit Plan Election Certificate).  He indicated that he was married to A____ and had no dependent children.  He further elected spouse, full coverage, option C, immediate coverage.  His spouse concurred with his decision and they both authenticated this form by placing their signatures in the appropriate blocks.

6.  On 30 April 1991, the Office of the Adjutant General, CAARNG, published Orders 013-54 reassigning the applicant to the Retired Reserve effective 1 May 1991.

7.  On or about 10 December 2001, as he neared his 60th birthday, the applicant submitted a request for retired pay and although not required, he also completed a DD Form 2656 (Data for Payment of Retired Pay) in conjunction with this application and again elected spouse coverage based on the full amount.

8.  On 20 August 2003, the U.S. Army Reserve Personnel Command, St. Louis, MO, published Orders P08-387132 placing the applicant on the Retired List in his retired grade of 1SG/E-8 effective 31 December 2003, his 60th birthday.

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 (and participate in SBP), 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; and (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.  If RCSBP option B or C is elected, there is a Reserve Component premium add-on 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 Reserve Premium add-on deducted from their retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that within 90 days of receipt of his 20-year letter, the applicant elected to participate in the RCSBP, full spouse coverage.  His spouse concurred with that decision in writing.  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.

2.  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.  Even if a member elects to terminate his SBP participation at that time, despite his action, the Reserve Component premium add-on will be deducted from his retired pay for life.  This deduction is the cost of the SBP coverage or protection the applicant's spouse enjoyed from the date the applicant made an election.

3.  Nevertheless, there is no evidence that the applicant requested termination of his SBP coverage during the 1-year period, beginning on the second anniversary of the date on which his retired pay started.  Additionally, there is no evidence that the applicant was not counseled properly at the time he made his election.

4.  The applicant appears to believe that he is locked into paying the SBP spouse premium whether his spouse survives him or not.  The applicant is advised that in the event that his spouse predeceases him, his current SBP deductions would stop with her death.  If he dies first, she would receive the annuity.  However, he is not required to pay premiums for a total of 360 months or even for the rest of his life if his wife dies before he does.

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)                                         AR20090012273



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ABCMR Record of Proceedings (cont)                                         AR20090012273



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