IN THE CASE OF:
BOARD DATE: 14 July 2011
DOCKET NUMBER: AR20110000329
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 Reserve Component Survivor Benefit Plan (RCSBP) election to show he declined coverage.
2. The applicant states survivor benefits were not explained to him after his release from active duty. He did not know what he was electing.
3. The applicant provides no additional evidence.
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 9 December 1948. His military records show he completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) wherein he elected RCSBP option C (Immediate Coverage) based on the full amount of his retired pay for spouse-only coverage while serving in the Army National Guard (ARNG) in pay grade E-2 on 23 February 1993. 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."
3. He was transferred from the ARNG to the Retired Reserve for years of service on 1 April 1993.
4. On 9 December 2008, he was retired and placed on the Retired List.
5. Public Law 92-425, the SBP, enacted 21 September 1972, 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.
6. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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. A member must make the election within 90 days of receiving notification of eligibility to receive retired pay at age 60.
7. 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. The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.
DISCUSSION AND CONCLUSIONS:
1. While the applicant states the RCSBP/SBP wasn't explained to him and he didn't know what he was electing, he has not submitted any evidence to support his contentions. His DD Form 1183 warned him that the decision he was making was irrevocable and to consider his decision very carefully.
2. The fact remains that if the applicant had died after he elected RCSBP on 23 February 1993, his beneficiary would have received SBP benefits. In other words, the applicant has already received 18 years of SBP coverage. It would be improper to now change his election.
3. In view of the foregoing, there is no basis for granting the applicant's request. However, the applicant may terminate his SBP coverage with spousal concurrence if he does so prior to December 2011. No SBP premiums will be refunded and SBP collections will continue until the effective date of disenrollment. In addition, the Reserve Component add-on premium may continue to be collected to pay for the protection his family had for those 18 years of coverage.
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 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.
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