IN THE CASE OF:	  

		BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110009777 


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, disenrollment from the Reserve Component Survivor Benefit Plan RCSBP/SBP.

2.  The applicant states:

* he was age 60 at the time of enrollment and was told he would only have to pay premiums until his 70th birthday (pay premiums for 10 years)
* he was not told that he had to pay premiums for 30 years and reach his 70th birthday, which means he would be paying until age 90
* he would be paying over $32,000 in premiums and his wife would never recoup that amount of money
* he would never have signed up for RCSBP had he been properly counseled
* his wife would be better off if he had invested the $90 monthly premium in more life insurance or in her retirement plan

3.  The applicant provides self-authored statements and a copy of his Defense Finance and Accounting Service-Cleveland (DFAS-CL) Form 7220/148 (Retiree Account Statement).

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 is a retired master sergeant/E-8.  His name was placed on the Reserve Retired List on 25 April 2007.  

3.  The applicant's interactive Personnel Electronic Records Management System (iPERMS) records contain a DD Form 1883 (Survivor Benefit Plan Election Certificate).  This document shows that on 4 June 1999, the applicant elected Option C (immediate coverage based on full retired pay), spouse-only SBP coverage.

4.  The DD Form 1883 is signed by the applicant, his spouse, and a witness.  This form also contains the following statement:  "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."   

5.  The applicant's DFAS-CL Form 7220/148 shows he is paying for spouse-only RCSBP coverage based upon his full gross retired pay.  Additionally, the form shows the applicant has paid 40 months towards his 360 months of paid up RCSBP/SBP coverage.

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 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.  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.

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.  Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay.

8.  Public Law 105-261, enacted 17 October 1998, established paid-up coverage under the SBP.  Effective 1 October 2008, no reduction may be made in the retired pay of a participant in the SBP for any month after the later of:  (1) the 360th month for which the participant’s retired pay is reduced; and (2) the month during which the participant attains age 70.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for disenrollment from the RCSBP/SBP was carefully considered and determined to lack merit.

2.  The applicant clearly had the opportunity to receive information concerning RCSBP/SBP.  Had he availed himself of that information he could have declined coverage with spousal concurrence.  Further, his wife has already benefitted from the protection of the RCSBP for the 8 years between his election and his 60th birthday.

3.  The applicant's signature on his DD Form 1883 indicates he understood the document he was signing was irrevocable.  He was not entitled to make a new election at age 60.

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)                                         AR20110009777



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009777



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1