IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100029334 


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 records to show he elected not to participate in the Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states he and his spouse elected not to participate in RCSBP.

3.  The applicant provides:

* his DD Form 2656 (Data for Payment of Retired Personnel), dated
23 November 2010
* an unsigned/uncertified Standard Form (SF) Form 1199A (Direct Deposit Sign-Up Form)
* his DD Form 108 (Application for Retired Pay Benefits), dated 
9 November 2010
* his ARPC Form 249-E (Chronological Statement of Retirement Points), dated 27 October 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was born on 3 December 1950.  He married his spouse on 22 November 1979.  They had one child born on 17 September 1989.


2.  Having prior Reserve service, he was appointed as a U.S. Army Reserve (USAR) Military Police Officer.  He entered active duty under the Active Guard Reserve (AGR) program on 12 September 1999.  He served in staff and leadership positions and he attained the rank/grade of lieutenant colonel (LTC)/O-5.

3.  On 14 July 2005, by memorandum, U.S. Army Human Resources Command, St. Louis, MO, issued him a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  This memorandum 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.

4.  Enclosed with this letter was a DD Form 2656-5 (RCSBP Election Certificate) which notified the applicant that he was entitled to participate in the RCSBP and that "by law" he had only 90 calendar days from the date he received this letter to submit his RCSBP election.  If he did not submit his election as required, this would result in automatic enrollment under "Option C, Full Coverage, Spouse and Children."

5.  There is no indication that he made an election.

6.  An interactive Personnel Electronic Records Management System (iPERMS) transaction history document shows that on 30 November 2010 a Retirement Services Officer (RSO) at Fort McPherson, GA, emailed retirement documents to the U.S. Army Human Resources Command stating the applicant changed his election.  The emailed response stated the RSO needed to clarify what the applicant wanted changed and if it was SBP coverage he could not make a change as he had automatic coverage based on the 2005 Twenty Year Letter.

7.  The applicant was honorably released from active duty on 31 December 2010 and he was transferred to the USAR Control Group (Reinforcement).  He completed 11 years, 3 months, and 19 days of creditable active service during this period.

8.  Orders C-07-010617, issued by the U.S. Army Human Resources Command, St. Louis, dated 20 July 2010, released him from the USAR Control Group (Reinforcement) by reason of completion of the maximum authorized years of service and assigned him to the Retired Reserve, effective 1 January 2011.

9.  The applicant provides a DD Form 2656, dated 23 November 2010, wherein he elected not to participate in the SBP.  He signed this form on the same date.  His spouse signed this form on 23 November 2010 and her signature was notarized on the same date.
10.  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; (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.  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.  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.

11.  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 Reservist Portion cost deducted from their retired pay.

12.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where Twenty Year Letters have been issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of Option C.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a Twenty Year Letter on 14 July 2005 notifying him that if he failed to make an RCSBP election within 90 days it would result in the automatic enrollment under Option C, full coverage, spouse and children.  There is no evidence of record and he did not provide any evidence to show he declined RCSBP coverage at that time.  Therefore, he was automatically enrolled in full RCSBP coverage for his spouse and children upon application for retirement pay.

2.  Retirees have a 1-year period, beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP by submitting the appropriate request to the Defense Finance and Accounting Service (DFAS) - Retired Pay.  The spouse’s concurrence is required, if the member is married at the time.  No premiums will be refunded to those who opt to disenroll from the program.

3.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance.  An online listing of RSOs by country, state, and installation is available on the following website at http://www.armyg1.army.mil/RSO/rso.asp.

4.  In view of the foregoing evidence, there is insufficient evidence to grant 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)                                         AR20100029334



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ABCMR Record of Proceedings (cont)                                         AR20100029334



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