IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20100027685 


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 change of his Survivor Benefit Plan (SBP) election from $300.00 to full gross pay.

2.  The applicant states he did not remember talking to anyone about SBP elections in 1992 or when completing his retirement paperwork.  Due to the fact that his wife only worked part time he elected full coverage when submitting his retirement data.

3.  The applicant provides:

* a self-authored statement
* a letter from the Chief, Army Retirement Services, Office of the Deputy Chief of Staff G-1, Washington, D.C.
* a DD Form 1883 (Survivor Benefit Plan Election Certificate)
* a DA Form 2656 (Data for Payment of Retired Personnel)
* various documents related to his attempts to clarify the issue

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, a retired Army National Guard (ARNG) master sergeant, completed 20 years of creditable service for retired pay in October 1991.  He was issued memorandum from the Department of Military Affairs, Springfield, IL, subject:  Notification of Eligibility for Retired Pay at Age 60 (also known as the 20-Year Letter), dated 29 October 1991.  On 8 December 1991, by a signed memorandum, he acknowledged receipt of the 20-year letter as well as DD Forms 1883, Army Reserve Personnel Center (ARPERCEN) Pamphlet 135-2 (Handbook on Retirement Services for Army Reserve Component Personnel and their Families), and other allied documents concerning retirement and SBP.

3.  On 23 January 1992, the applicant submitted the required DD Form 1883.  At this time he elected a reduced annuity in the amount of $300.00 to be effective immediately [Option C].  His DD Form 1883 was witnessed by his unit's personnel administrator.

4.  The applicant remained in an active ARNG status until 2003 and he became eligible for receipt of retired pay effective 31 July 2010, having attained the age
of 60.

5.  His DA Form 2656, dated 25 March 2010, shows an election of SBP coverage for spouse only at full gross pay.

6.  In a personal statement the applicant states that upon receipt of his first Retiree Account Statement he noticed that the annuity base amount was $300.00.  Knowing that he had elected full gross pay on his 25 March 2010 paperwork, he attempted to determine why there was a difference in the amounts.  After contacting various offices he learned of his earlier election.  He does not remember if there was anyone available to counsel Soldiers on SBP at the time of his initial election and believes he set the $300.00 based on the amount of his drill pay at the time.

7.  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 (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; (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.  

8.  Changes to elections can only be made during Congressionally authorized SBP Open Seasons.  Open Seasons have been established thus far only for the following periods:

* 21 September 1972 - 20 March 1974
* 1 October 1978 - 31 March 1980
* 1 October 1981 - 30 September 1982
* 1 April 1992 - 31 March 1993
* 1 October 2005 - 30 September 2006

DISCUSSION AND CONCLUSIONS:

1.  The applicant's election of the reduced coverage under Option C in 1992 gave him SBP coverage for his wife from that date on.  His 20-Year Letter indicated that all the documents needed to make an informed RCSBP were attached and received by him.

2.  In the creation of the SBP laws, Congress specifically precluded service members who elected a reduced annuity at the time they received their 20-Year Letter from later changing that election except during an Open Season enrollment period, at which time coverage may be increased upon payment of increased costs if so authorized by Congress.

3.  The applicant should carefully read each issue of Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.  Should Congress declare another Open Season it will be heavily publicized in the bulletin.


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)                                         AR20100027685



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ABCMR Record of Proceedings (cont)                                         AR20100027685



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