IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007779 


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 at the point of retirement (gray area) he was informed that the DD Form 1883 (Survivor Benefit Plan Election Certificate) only covered the gray area and that he would have the opportunity to waive SBP at retirement. Prior to retirement, he submitted a DD Form 2656 (Data for Payment of Retired Personnel) wherein he indicated that he did not want the SBP and his wife concurred with his decision.  He then received his first Retiree Account Statement and noticed a deduction for the SBP.  He contacted officials at the Defense Finance and Accounting Service (DFAS) and he was told it would be stopped.  However, his subsequent statements do not reflect it was stopped.

3.  The applicant provides a copy of his DD Form 1883, dated 26 July 1978, and a copy of his DD Form 2656, dated 19 March 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was born on 4 January 1949.  He was appointed as a second lieutenant in the U.S. Army Reserve (USAR) and he executed a DA Form 71 (Oath of Office - Military Personnel) on 29 May 1971.

2.  On 31 July 1976, he married his spouse, L----.

3.  The applicant’s records also show he served in various staff and leadership positions and he attained the rank/grade of lieutenant colonel (LTC)/O-5.

4.  On 21 January 1998, the U.S. Army Reserve Personnel Command (now known as the U.S. Army Human Resources Command), St. Louis, MO (USAHRC-STL), issued the applicant a Notification of Eligibility for Retired Pay at Age 60, also known as the 20-year letter.  This letter notified the applicant that he had completed the required years of service and he 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 26 July 1998, the applicant completed a DD Form 1883.  He indicated that he was married to L---- and he had no dependent children.  He further elected spouse, full coverage, option B.  His spouse concurred with his decision and they both authenticated this form by placing their signatures in the appropriate blocks.

6.  On 19 March 2008, 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 in conjunction with this application and elected not to participate in the SBP.  His spouse, L----, and a witness authenticated this form by placing their signatures in the appropriate blocks.

7.  On 19 September 2008, USAHRC-STL published Orders P09-814464 placing the applicant on the Retired List in his retired rank/grade of LTC/O-5, effective 4 January 2009, his 60th birthday.

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 (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.

9.  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 subsequent to receiving his 20-year letter, the applicant elected to participate in the RCSBP, full spouse coverage with delayed payment until what would have been his 60th birthday if he had died before then.  His spouse concurred with that decision in writing.

2.  By law, 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 the RCSBP; it automatically rolls into SBP coverage.  Additionally, 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.  The applicant made a decision to enroll in the RCSBP.  There is no evidence that he was not properly counseled at the time he made his election. There is neither an error nor an injustice.

3.  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.  If the applicant elects to terminate his SBP participation at that time, he is advised that 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.  His termination window begins on 4 January 2011.

4.   In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100007779



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR2010000