BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110015619 


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 termination of his participation in the Survivor Benefit Plan (SBP) and reimbursement of all premiums paid for this benefit.

2.  The applicant states:

	a.  his options pertaining to SBP coverage were not fully explained to him during his initial retirement briefing, and

	b.  he was under the impression that he had no other choice but to provide an SBP annuity for his spouse.

3.  The applicant provides no additional documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 7 February 1948.  He and his spouse were married on 24 December 1972.

2.  After having prior military service in the U.S. Navy, he enlisted in the Arkansas Army National Guard (AKARNG) on 2 September 1987.  He held military occupational specialty (MOS) 25X (Senior Signal Sergeant) and he was appointed a command sergeant major (CSM/E-9) on 1 April 2005.

3.  On 15 October 2006, the Military Department of Arkansas, Office of the Adjutant General, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  It shows the applicant was notified:

	a.  that he completed the required years of service and he would be eligible for retired pay upon application at age 60;

	b.  that by law, he was entitled to participate in the Reserve Component SBP (RCSBP), his sole means of protecting his retired pay;

	c.  that by law, "a qualified Reserve component member, who is married, will automatically be enrolled in the RCSBP under option C, Spouse and Child(ren) coverage based on the Full Retired Pay, UNLESS different coverage is selected within 90 days of receipt of this letter";

	d.  a notarized spousal concurrence is required in order to decline full and immediate coverage for annuitants and that failure to meet this requirement would result in the retention of full coverage for his spouse and child(ren); and

	e.  to contact his command for answers to specific individual questions.  (A DD Form 2656-5 (RCSBP Election Certificate) was provided for him to complete his election.  It provided specific details regarding the options available to him which included his option to decline RCSBP coverage.)

4.  On 15 October 2006, the applicant completed the DD Form 2656-5.  It shows:

	a.  he elected to participate in the RCSBP for spouse only coverage;

	b.  he elected to provide his spouse an annuity at the full rate under option C indicating immediate coverage after his death regardless of his age; and

	c.  a witness authenticated this document with her signature on 15 October 2006.

5.  Orders 063-857, issued by the Office of the Adjutant General of Arkansas, Camp Joseph T. Robinson, North Little Rock, AR, dated 3 March 2008, discharged the applicant from the ARNG and transferred him to the Retired Reserve effective 2 March 2008.  He was over 60 years old effective the date of the orders.

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 to 

provide an annuity for their survivors should they die before reaching age 60.  
Three options are available:

	a.  Option A (Defer) - elect to decline enrollment and choose at age 60 whether to start SBP participation;

	b.  Option B (Age 60) - 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; and

	c.  Option C (Immediate Coverage) - elect that a beneficiary receive an annuity immediately upon their death if before age 60.

7.  Soldiers with RCSBP coverage in place do not make a new election upon reaching age 60.  RCSBP coverage rolls into SBP.

8.  Public Law 105-85, enacted on 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.  The applicant contends his participation in the SBP should be terminated and he should be reimbursed all associated premiums for this benefit because his SPB options were not explained to him during his initial retirement briefing.  However, his record does not contain any information and he failed to provide any evidence documenting the information he received during his retirement briefing.

2.  By law and regulation, Soldiers who complete 20 or more years of qualifying service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The evidence of record confirms a DD Form 2656-5 was provided to the applicant as an attachment with his 20-year letter and it identified the details regarding all RCSBP options.

3.  In addition, the 20-year letter confirms the applicant was given 90 days to make his election and he was informed to contact his command for answers to any specific questions he might have.  After receiving the details regarding each 

of the RCSBP options, the applicant elected spouse only RCSBP coverage based on the full amount under option C.  This RCSBP spouse coverage rolled into SBP spouse coverage.  He retired from the ARNG at the age of 60 on 2 March 2008.

4.  By law, retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP and no premiums are refunded to those who opt to disenroll.  The applicant reached the second year anniversary from the official start date of his retired pay on 2 March 2010.  He had until 1 March 2011 to withdraw from the SBP; however, he submitted his request for termination of SBP coverage to this Board on 20 July 2011.  As a result, his request fell outside his window of eligibility to withdraw from the SBP.  Accordingly, there is no basis upon which to grant the requested relief in this case.

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)                                         AR20110015619



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ABCMR Record of Proceedings (cont)                                         AR20110015619



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