IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100008875 


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, revocation of his enrollment in the Survivor Benefit Plan (SBP) and discontinuation of the deduction of monthly payments from his Department of Veterans Affairs (VA) disability compensation benefits.

2.  The applicant states he was led to believe he would receive a military retirement check when he retired from the military.  He contends he does not receive military pay and therefore he should not be required to pay SBP premiums.

3.  The applicant provides the following:

* AHRC-PAP-T Orders P02-901548, U.S. Army Human Resources Command, dated 10 February 2009
* A Notarized SBP Affidavit (Request for Disenrollment), dated 21 January 2010
* An SBP Questionnaire

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he was born on 26 April 1949.  After having had prior service, he enlisted in the Army National Guard (ARNG) on     15 October 1977 and continued to serve through 30 June 1995.  

2.  On 8 November 1994, the Office of the Adjutant General, Georgia ARNG (GAARNG), 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 shows a copy of the SBP Summary was attached.  A copy of this document is not in the available records. 

3.  A copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was honorably discharged on 30 June 1995, under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-27a.  He was transferred to the United States Army Reserve Control Group (Retired) in the rank/pay grade of sergeant/E-5.  He had completed 25 years, 3 months, and 17 days total service for pay.

4.  On 30 June 1995, the Office of the Adjutant General, GAARNG, published Orders 101-078, reassigning the applicant to the Retired Reserve, effective 
30 June 1995.  

5.  On 26 April 2009, the applicant turned 60 and was placed on the retired list.

6.  The applicant's records are void of a DD Form 1883 (SBP Election Certificate) to indicate the type of coverage, if any, he elected upon receipt of his 20-Year Letter.  An email transmission between the Board staff and the Defense Finance and Accounting Service (DFAS), dated 18 August 2010, indicates he elected spouse coverage at the time of retirement.  

7.  This email also shows his military retirement account was suspended for receipt of 40 percent VA benefits.  He is currently receiving disability compensation in the amount of $601.00 per month which is nontaxable.  His monthly military retirement pay would be $435.00 per month, in the pay grade of E-5 and would be taxed.  If and when the applicant's VA compensation rating is increased to 50 percent, he will qualify for Concurrent Retirement and Disability Payments (CRDP).  When and if this becomes applicable, 50 percent of his military retired pay would be restored.    

8.  The applicant has provided a notarized SBP Affidavit (Request for Disenrollment) in which he indicated he was improperly counseled about SBP prior to his retirement.  His spouse indicated she understands that when his 
retirement pay stops upon his death she will not continue to receive a portion of his retirement pay if she is not enrolled in the SBP.  She signed the affidavit of her own free will.  

9.  In a copy of an SBP Questionnaire provided by the applicant indicates he did not attend a Transition Assistance Seminar, he did not receive a pre-separation counseling interview, his spouse did not receive information regarding SBP, and he did complete a DD Form 2656 (Data for Payment of Retired Personnel). 

10.  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.  

11.  Public Law 95-397, the Reserve Component SBP, 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.  

12.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  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.  Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay.

13.  Section 1414 of Title 10, United States Code (U.S.C.) authorized Concurrent Receipt, currently called Concurrent Retirement and Disability Payments (CRDP), for certain individuals who currently had a Retired Pay offset due to disability compensation from the VA.  In order to qualify for payments under this section of law, an individual must be rated by the VA at least 50 percent disabled or unemployable.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should not be required to pay SBP premiums because he was not properly counseled was carefully considered.

2.  An email transmission between the Board staff and DFAS indicates he elected spouse coverage at the time of retirement and he is currently receiving disability compensation in the amount of $601.00 a month at the 40 percent rating in lieu of his military retired pay, which would be $435.00 a month in the pay grade of E-5 and it would be taxed.  

3.  There is no evidence in the available records and the applicant has not provided sufficient evidence which shows he was not properly advised about the potential consequences of choosing the various options of SBP when he made his initial election for enrollment.  It is reasonable to presume the applicant was provided detailed SBP information along with his 20-year letter.  He could have availed himself of this information at the time he requested retired pay and made his SBP election, or he could have sought the counsel of the nearest Reserve unit or Retirement Services Officer for an SBP briefing.

4.  The applicant turned age 60 on 26 April 2009.  On 1 May 2011, he will have a one-year opportunity for disenrollment from the SBP.  

5.  The affidavit provided by the applicant is premature.  He can request to terminate his participation in the SBP 1 year following the second anniversary of the date he began to receive retired pay (1 May 2011 through 30 April 2012), provided his spouse concurs in writing.  No previously deducted costs will be reimbursed.

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)                                         AR20100008875



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ABCMR Record of Proceedings (cont)                                         AR20100008875



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