IN THE CASE OF:	  

		BOARD DATE:	  18 October 2011 

		DOCKET NUMBER:  AR20110007955 


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 that his records be corrected to show that he elected to decline participation in the Survivor Benefit Program (SBP) at the time of his retirement on 8 July 2010.

2.  The applicant states that he submitted a DD Form 2656 showing that he and his wife elected not to participate in the SBP and had it notarized; however, the officials at the Defense Finance and Accounting Service (DFAS) informed him that his 1991 election took priority.  He goes on to state that he was under the impression that the most recent form took precedence. 

3.  The applicant provides a statement explaining his request, a DD Form 2656 (Data for Payment of Retired Personnel) dated 26 October 2009 and a copy of his DD Form 1883 (SBP Election Certificate) dated 18 December 1991. 

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 8 July 1950 and he was serving in the United States Army Reserve (USAR) when he received his 20-year letter and submitted his DD Form 1883 on 18 December 1991 in which he elected full spouse coverage under option C (immediate coverage).  He signed the form in front of a witness and the form indicates that participation in the SBP is an irrevocable decision and that it was the only election he made under the SBP.

3.  On 30 December 1996 he was transferred to the USAR Control Group (Retired) due to maximum length of service.

4.  On 26 October 2009 he submitted a notarized DD Form 2656 in which he and his spouse elected not to participate in the SBP.

5.  On 8 July 2010 the applicant reached age 60 and was placed on the AUS Retired List in the pay grade of E-7.

6.  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 the RCSBP), 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 RCSBP 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 he begins receiving 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 RCSBP election at age 60.  They cannot cancel RCSBP participation or change options they had in RCSBP – it automatically rolls into RCSBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the RCSBP to cover the additional benefit and assured protection should the member have died prior to age 60.

7. Public Law 105-85, enacted on 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from the SBP.  The spouse's concurrence is required.  No premiums will be refunded to those who opt to disenroll.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show that he declined participation in the SBP. 

2.  It is clear that the applicant completed a DD Form 1883 on 18 December 1991 electing full RCSBP coverage for his spouse.  At the time, he had three options to choose from, two of which were irrevocable, and he chose to enroll in the RCSBP Option C with immediate full spouse coverage.  Based upon his election of Option C, had the applicant died prior to reaching age 60, his spouse would have been eligible to receive full RCSBP entitlements.  At the time, he chose an irrevocable option when he enrolled in RCSBP on 18 December 1991.

3.  Accordingly, he has enjoyed the benefit of coverage since 1991 and there is no evidence in the available records, and the applicant has not provided sufficient evidence which shows that he was not properly advised about the potential consequences of choosing the various options of the RCSBP when he made his initial election for enrollment.  Based on the foregoing, there is insufficient evidence to grant the applicant's request for terminating enrollment in the RCSBP in this case.
  
4.  However, he is not precluded from exercising his option to disenroll from the SBP, with his wife’s concurrence, during the 1-year period following the second anniversary of receipt of his retired pay, without repayment of premiums.    

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)                                         AR20110007955





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ABCMR Record of Proceedings (cont)                                         AR20110007955



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