IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100000493 


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, his military records be corrected by canceling his Reserve Component Survivor Benefit Plan (RCSBP) participation for spouse and children coverage. 

2.  The applicant states:

* He received a Leave and Earnings Statement (LES) in December 2009 showing he was charged $95.33 for RCSBP
* He did not retire until his 60th birthday
* He retired while he was on active duty
* When he retired they collected SBP costs for his wife and there was never anything mentioned to him about paying RCSBP premiums each month since his retirement in March 2005
* There has just been one SBP cost shown on his LESs since he retired
* He does not believe he should be paying for the RCSBP
* He can understand someone retiring at age 55 and not reaching their 60th birthday having to pay but he retired on his 60th birthday	  

3.  The applicant provides an LES, dated 2 December 2009, 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 5 March 1945.  Having prior active enlisted service in the Regular Army and inactive service in the U.S. Army Reserve (USAR), the applicant enlisted in the Army National Guard on 20 January 1973.      

3.  The applicant's notification of eligibility for retired pay at age 60 (his 20-year letter) was prepared on 16 May 1991.  The applicant's DD Form 1833 (SBP Election Certificate), dated 31 July 1991, shows he enrolled in the RCSBP for spouse and children coverage, option C (immediate coverage), 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.  On 27 May 1992, the applicant was honorably discharged from the Army National Guard for appointment as a Warrant Officer.  He was appointed a Chief Warrant Officer Two in the Army National Guard on 28 May 1992.  On 22 June 1998, he was separated from the Army National Guard and transferred to the USAR.  He entered active duty on 4 April 2003.  

5.  On 5 March 2005, the applicant turned age 60.

6.  On 10 March 2005, the applicant was released from active duty in the rank of Chief Warrant Officer Four.  He had completed under 12 years of active Federal service.  He was placed on the retired list on 1 April 2005.

7.  In support of his claim, the applicant provided an LES, dated 2 December 2009, which shows, in pertinent part, SBP coverage (spouse only) cost of $198.61 and RCSBP cost of $95.33.  

8.  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.

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 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  He had been on active duty when he turned age 60, but he did not retire because he completed 20 years of active Federal service.  He retired because he was a Reservist who turned age 60.

2.  The applicant’s DD Form 1883 shows he enrolled in the RCSBP for spouse and children coverage, option C (immediate coverage), on 31 July 1991.  That was an irrevocable election that rolled over into the standard SBP upon reaching age 60.  Had he died anytime after his July 1991 RCSBP election and prior to age 60 his spouse would have received an annuity.  The applicant must now pay for that coverage.  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)                                         AR20100000493



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ABCMR Record of Proceedings (cont)                                         AR20100000493



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