IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100012414 


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, correction of his record to show he elected no coverage under the Reserve Component Survivor Benefit Plan (RCSBP) and refund of the premiums already collected.  

2.  The applicant states an Army representative provided him with incorrect information at the time he completed the DD Form 1883 (Survivor Benefit Plan Election Certificate).  He was informed that by signing the form, upon his death his daughter would receive his pension until her death.  Now he has been informed that once she reached age 22 she was no longer eligible.  When he made his RCSBP election, she was already 19 years old, with only 3 years of eligibility remaining.  He further states, in effect, that had he received accurate information, he would not have agreed to pay premiums for the rest of his life for 3 years of eligibility for his daughter.

3.  The applicant provides a copy of his DD Form 1883.

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 enlisted in the U.S. Army Reserve (USAR) on 27 July 1968.  An ARPC Form 249-E (Chronological Statement of Retirement Points) shows he completed 24 years in the USAR qualifying for retirement.  Effective 8 December 2009, he was placed on the Army of the United States (AUS) Retired list.   

3.  On 7 June 1989, the applicant was notified he had completed the required years of service to be eligible for retired pay at age 60 and that he was entitled to participate in the RCSBP.  

4.  On 19 July 1989, the applicant signed a DD Form 1883 stating his RCSBP coverage choices.  The applicant chose children-only coverage and option C.  He listed his daughter as the eligible beneficiary and indicated her date of birth was 19 January 1970.  The form signed by the applicant included the statement "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."

5.  The record is void of documentation showing what information regarding RCSBP options the applicant received prior to making his election.

6.  During the processing of this case, the Defense Finance and Accounting Service (DFAS) confirmed the applicant had elected children-only coverage under the RCSBP.  DFAS noted that, even though the applicant's child was no longer eligible to receive the benefit when he became eligible to receive retired pay in 2009, the RCSBP premium is a required deduction from his retired pay for the coverage provided prior to him becoming eligible to receive retired pay.  DFAS further noted that the deduction is at a rate smaller than it would have been if his child were still eligible.

7.  The applicant was provided a copy of the DFAS opinion for comment and/or rebuttal.  On 22 October 2010, he responded, reiterating his assertion that he was misinformed by the Army and would not have made the election if he had been correctly informed.

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 to include persons of insurable interest should the Reservist die before reaching age 60.  Three options are available:  
	a.  Option A allows Reservists to decline enrollment upon notification of retirement eligibility and allows Reservists to elect coverage at age 60; 

	b.  Option B allows Reservists to elect to provide an annuity beginning on the 60th anniversary of their birth should they die before age 60 or on the day after the date of death should they die after their 60th birthday; and

	c.  Option C allows a Reservist to elect to provide an annuity immediately upon their death whether before or after age 60.  

9.  Public Law 95-397 further provides that 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 for it automatically rolls into SBP coverage.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  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.

10.  Department of Defense Instruction Number 1332.42 (Survivor Annuity Program Administration), Enclosure 3, paragraph 13f(2), states members electing child-only RCSBP coverage shall have their retired pay reduced for all months, even if there is no child beneficiary, based upon any period that child-only coverage was provided before becoming entitled to receive retired pay.

11.  Section 1447 of Title 10, U.S. Code (10 USC 1447) defines the terms used in the statute governing RCSBP.  It defines "dependent child,'' in pertinent part, as a person who is unmarried and is:

	a.  at least 18, but under 22, years of age and pursuing a full-time course of study or training in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution; or 

	b.  incapable of self support because of a mental or physical incapacity existing before the person's eighteenth birthday or incurred on or after that birthday, but before the person's twenty-second birthday, while pursuing such a full-time course of study or training.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for correction of his record to show he elected no coverage under the RCSBP and refund of the premiums already collected.  

2.  Because his daughter had reached age 19 at the time he made his RCSBP election, to receive the benefit upon his death she would have had to be a full-time student or mentally or physically incapacitated.  In the absence of evidence indicating otherwise, the ABCMR must presume that by listing her as the beneficiary the applicant confirmed her eligibility in one of the aforementioned categories.  In addition, any future children the applicant may have had would have been eligible for SBP coverage.

3.  Had the applicant died before his daughter reached age 22, she would have received the RCSBP benefit, provided she was in an eligible status.  Now that he is receiving retired pay, the premium for that benefit is being recouped at a reduced rate due to the fact that his daughter is no longer an eligible beneficiary.  As with any insurance program, the fact that the benefit was not used does not change the fact that the insured party must pay a premium for the benefit.  

4.  In the absence of documentary evidence corroborating the applicant's statement that he was misinformed, there is no basis for granting the 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)                                         AR20100012414





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ABCMR Record of Proceedings (cont)                                         AR20100012414



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