IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100028817 


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, that his election to participate in the Reserve Component Survivor Benefit Plan (RCSBP) be voided.

2.  He states he and his current spouse decided not to have RCSBP coverage and submitted their election with his retirement package to the U.S. Army Human Resources Command (AHRC), St. Louis, MO, in 2008.  When he received his first retirement check in November 2010, there was a $150 deduction for RCSBP.  He contacted the Defense Finance and Accounting Service (DFAS) and was informed that he should have been counseled and informed of his options when he remarried in July 2005.  If he had been given the option of declining or accepting RCSBP in 2005, he and his current spouse would have declined it.

3.  He provides a statement signed by him and his current spouse.

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 2 October 1950.

3.   A Certificate of Marriage shows he married P.A.L. on 9 February 1980.  

4.  On 21 October 1993, he received notification he had completed the required years of service to receive retired pay at age 60.  

5.  On 5 December 1993, he and his spouse signed a DD Form 1883 (Survivor Benefit Plan Election Certificate).  The form shows he elected spouse and children RCSBP coverage based on the full amount of retired pay and Option C (Immediate Coverage).  He listed three children on the form with the dates of birth 10 July 1982, 20 September 1985, and 28 November 1989.  This form states:  "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."

6.  A Final Decree of The Family Court of the State of Delaware shows, on 6 April 2004, he and P.A.L. were divorced. 

7.  A transaction history in the Integrated Web Services (IWS), a human resources management database maintained by AHRC, shows he submitted a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate) to AHRC on or about 14 October 2004.  In item 7 (My current coverage is:), he checked the box for "spouse only."  In item 8 (I am requesting a change in coverage based on:), he checked the box for "divorce."  Item 9 shows he elected to suspend coverage.

8.  The DD Form 2656-6 he submitted includes the following note below item 8:

If either "Divorce" or "Death of Spouse" is selected, and the member has previously elected spouse and child coverage, the coverage would convert to "Child Only" coverage if the member has an eligible child.  Exception:  In the event of divorce and the member is required to provide former spouse coverage.

9.  A State of Delaware Marriage License and Certificate of Marriage shows he married J.W. on 30 July 2005.

10.  On 8 May 2006, he was discharged from the Delaware Army National Guard and transferred to the Retired Reserve.  He completed 34 years, 7 months, and 14 days of total service for pay.

11.  On 13 October 2010, AHRC, St. Louis, MO, issued Orders P10-928213 retiring the applicant and placing him on the Army of the United States Retired list effective 2 October 2010, the date he reached age 60.

12.  During the processing of this case, DFAS confirmed his current SBP beneficiary of record is his current spouse and that he had attempted to elect suspended coverage at retirement but was ineligible.  DFAS records show he currently has a spouse cost of $103.29, a child cost of $.02, and a Reserve Component factor cost of $15.73.  

13.  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.

14.  Public Law 95-397 further provided 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 the 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.

15.  Children may be beneficiaries under the RCSBP and SBP if they are unmarried and under age 18; 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 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.

16.  Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to first anniversary of remarriage).  Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date.

17.  Department of Defense Instruction Number 1332.42 (Survivor Annuity Program Administration) states a member may elect to discontinue participation in the SBP by submitting DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request) during the period that is more than 2 years, but less than 3 years, after the first date of entitlement to receive retired pay.  The member must submit the request no earlier than the 1st day of the 25th month, and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable.  A member electing to terminate coverage is not eligible for continuation in SBP; however, the member has 30 days after submitting a request to discontinue participation to revoke the request.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request to void his election to participate in the RCSBP.

2.  He made an irrevocable decision when he elected spouse and children RCSBP coverage and Option C in 1993.  After his divorce in 2004, he submitted the proper form to AHRC indicating he had elected spouse-only coverage and wished to suspend that coverage due to his divorce.  However, because he had elected spouse and children coverage, full suspension of his participation in the plan was not possible.  His suspension of spouse coverage would have had the effect of converting his election to children only.  The children-only portion of his election remained in effect until his youngest child married, reached age 18, or reached age 22 if pursuing a full-time course of study or training.  

3.  When he remarried in 2005, he again had an eligible spouse SBP beneficiary.  He then had 1 year to elect not to resume the spouse portion of his elected coverage.  He states he did not attempt to do so until he submitted his retirement 


package in 2008, approximately 3 years after he remarried.  As a result, his request was denied in accordance with law and his coverage was continued as he elected in 1993.  

4.  DFAS records show he is now paying $119.04 per month for SBP coverage, which includes a Reserve Component factor cost of $15.73 for the coverage he received under Option C during the period between his original election and the date he began receiving retired pay.  

5.  He contends he should have been informed of the requirements for electing not to resume spouse coverage when he remarried in 2005.  However, the fact that he knew to suspend spouse coverage when he divorced in 2004 indicates he knew where to find information about the program's requirements for reporting changes.  That he failed to do so in a timely manner after he remarried appears to be his own fault.

6.  A member may elect to discontinue participation in SBP during the period that is more than 2 years, but less than 3 years, after the first date of entitlement to receive retired pay.  The applicant will be eligible to make that election on 3 October 2012.  If he does so, he should note he will still be required to pay the Reserve Component factor cost for the coverage he received during the period between his original election and the date he began receiving retired pay.  

7.  In view of the foregoing, there is an insufficient basis for granting the applicant's request to void his election to participate in the RCSBP.

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)                                         AR20100028817





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ABCMR Record of Proceedings (cont)                                         AR20100028817



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