BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20090020649 


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 correction of his record to show he elected "full" coverage in his Reserve Component (RC) Survivor Benefit Plan (SBP) election.

2.  The applicant states he was given the wrong information by the unit administrator in June 1991 while completing his DD Form 1883 (SBP Election Certificate).  He states the unit administrator told him to fill in $600.00 as the base amount.  The applicant states he was unaware of the problem until he filled out his retirement packet in December 2007 and was told that the entry would be corrected with the information contained in his retired pay application.  He offers that he was shocked to see his first retiree account statement (RAS) and discovered that his spouse would only receive 55 percent of a base amount of $600.00 ($330.00) in the case of his death.  The applicant states that he feels this error is a life-changing event and his wife will need this annuity to survive.

3.  The applicant provides a copy of his DD Form 2656 (Data for Payment of Retired Personnel), DD Form 1883, October RAS, DD Form 214 (Certificate of Release or Discharge from Active Duty), and DD Form 215 (Correction to DD Form 214).

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's record confirms he completed 26 years, 10 months, and 11 days of qualifying service for nonregular retirement between 27 October 1967 and 15 October 1996.  His date of birth is 12 October 1949.

3.  On 13 April 1991, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  The memorandum informed him he had 90 days from the date he received the memorandum to complete a DD Form 1883.

4.  The applicant's DD Form 1883, dated 17 June 1991, shows he elected RCSBP coverage for spouse and children, option C (Immediate Coverage), at a reduced rate.  The amount of retired pay base amount is listed as $600.00.  The DD Form 1883 states, "IMPORTANT:  The decision you make with respect to participation in the Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully."  Both the applicant and his spouse signed this form.

5.  Section IX (SBP Election) of the applicant's DD Form 2656, dated 
8 December 2007, shows he elected coverage for spouse only in item 26 (Beneficiary Categories).  Item 27 (Level of Coverage) shows he elected coverage based on full gross pay.  This form shows the witness signed the form on 8 December 2007 in Section XI (SBP Spouse Concurrence), item 31a (Witness Name), and in Section XII (Certification), item 33a (Witness Name).  However, neither the applicant nor his wife signed this form.

6.  The applicant's 23 October 2009 RAS shows the SBP spouse-only cost was $15.00 and the RCSBP cost was $21.66, for an annuity base amount of $600.00.

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.  Changes in SBP options are not authorized except in specific instances as authorized by law.


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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 1883 informed him his RCSBP election was an irrevocable decision.  The fact that he argues he was given the wrong information by the unit administrator and instructed to select a base amount of $600.00 is not sufficiently mitigating to warrant granting the requested relief nor is it supported by any independent evidence.

2.  The applicant also maintains he was unaware of the problem with his reduced SBP until December 2007 and was informed that the entry would be corrected with his retired pay application.  However, the applicant's DD Form 2656, dated 8 December 2007, is incomplete and the applicant's signature verifying his election of full coverage is not contained on this form.  Even if the form was complete, it does not change the applicant's original irrevocable election because RCSBP simply rolls into SBP.  Those who elect option B or option C do not make a new election.

3.  The form itself was clear as to the applicant's choice of a reduced amount.  The evidence of record shows` the applicant and his wife signed the DD Form 1883 electing reduced annuity coverage with a base amount of $600.00.

4.  The applicant is advised that he may make a change to his RCSBP election during the next open season, as periodically authorized by Congress.  Open seasons are announced in Army Echoes, which the applicant should currently be receiving, and/or he can obtain additional information on SBP open seasons from the Retirement and Annuitant Pay Section of the Defense Finance and Accounting Service website http://www.dod.mil/dfas/money/retired/index.htm.

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)                                         AR20090020649



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ABCMR Record of Proceedings (cont)                                         AR20090020649



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