IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20110022920 


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

2.  The applicant states:

	a.  Upon receipt of her 20-year letter on 29 April 1991 and while on active duty, she questioned the finance office about whether she should complete the SBP election forms at that time or wait to elect to participate in the Reserve Component SBP (RCSBP) during her retirement processing.

	b.  Finance office officials stated she could elect one of following options which would allow her beneficiaries to receive the resulting benefits in the event of her death:
   
* Option A - her family to receive nothing because she was not 60 years old
* Option B - her family would begin to receive benefits on the date she would reach 60 years of age
* Option C - her family would immediately receive benefits and in the event nothing happened to her, she would have the opportunity to apply for SBP at the time she submitted her application for retirement

	c.  She elected option C because she had six small children and her spouse was also on active duty, knowing she could change her election at the time of her retirement, based on the information she received.

	d.  During the next 20 years of Reserve component (RC) service, she was provided other opportunities to participate in the SBP and she elected to decline this coverage under Option A each time.

	e.  She lastly declined SBP coverage during her retirement processing which included her spouse's notarized concurrence and at no time after 1991 or during her retirement was she informed that her initial election for SBP coverage was irrevocable.

	f.  She assumed the SBP election made in 1991 was only completed because she was on active duty and had no effect on her as an RC Soldier and she was totally surprised upon receipt of her first retirement check that included an SBP 
deduction.

	g.  Although she immediately contacted the retirement office and she was told the discrepancy would be fixed, she was later instructed to apply to this Board for a correction of her record based on her initial election made in 1991.

	h.  Her participation in the SBP should be terminated and all premiums reimbursed because the SBP election options were not fully explained to her while she was on active duty.

3.  The applicant provides:

* Self-authored statement
* Page 2 of a DD Form 2656 (Data for Payment of Retired Personnel)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 25 March 1952.  She and her spouse were married on 10 April 1975.

2.  She was appointed a Reserve commissioned officer of the Army in the rank/grade of first lieutenant (1LT)/O-2 on 1 June 1974.  She was trained in and held area of concentration 3449 (Clinical Nurse).

3.  Her official military personnel file (OMPF) includes a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows she was ordered to active 

duty in support of Operation Desert Shield/Desert Storm as a member of the U.S. Army Reserve (USAR) on 1 February 1991 and she served until she was released from active duty (REFRAD) on 7 July 1991.  The DD Form 214 she was issued at the time shows she completed 5 months and 7 days of creditable active service this period.

4.  The U.S. Army Reserve Personnel Center, Chief, Retired Activities, issued the applicant's Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 20 April 1991.  It shows she was notified:

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

	b.  that by law she was entitled to participate in the RCSBP to provide an annuity to her spouse and other eligible beneficiaries;

	c.  that by law she had 90 calendar days from the date of that letter to submit the enclosed DD Form 1883 (SBP Election Certificate); and

	d.  if her election was not received within the 90 days she would not be allowed to participate in the SBP until she applied for retired pay at age 60.

5.  On 6 June 1991, the applicant completed the DD Form 1883.  It shows:

	a.  she elected to participate in the RCSBP for spouse and children coverage (six);

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

	c.  "IMPORTANT:  The decision you make with respect to participation in this Survivor Benefit Participation is a permanent irrevocable decision.  Please consider your decision and its effect very carefully"; and

	d.  the applicant signed this document on 6 June 1991.

6.  Orders Number C-01-200183, issued by the U.S. Army Reserve Personnel Command, St. Louis, MO, dated 3 January 2002, released the applicant from the USAR Control Group (Reinforcement) and assigned her to the Retired Reserve effective 1 June 2002 by reason of completion of maximum authorized years of service.

7.  The applicant's OMPF includes a DD Form 214 that shows she was ordered to active duty on 1 November 2009 in support of a national emergency declared under Presidential Proclamation 7463.  It also shows she was REFRAD on
31 October 2010 at the completion of required active service.

8.  On 16 November 2010, the applicant completed and signed a DD Form 2656. She placed an "X" in the first block of item 26g indicating "I ELECT NOT TO PARTICIPATE IN SBP" and she placed an "X" in the second block indicating she did have eligible family members under the plan.  Her spouse signed the DD Form 2656 under Section XI (SBP Spouse Concurrence) indicating he concurred with the SBP decision made by his spouse.

9.  Orders P02-940949, issued by the U.S. Army Human Resources Command, St. Louis, dated 7 February 2011, placed the applicant on the Retired List effective 25 March 2011.

10.  The applicant's Defense Finance and Accounting Service record shows she first received a retired payment for the prorated period 25 - 31 March 2012 in conjunction with her 60th birth date.

11.  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.

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

13.  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.

14.  Department of Defense Financial Management Regulation (DODFMR), Volume 7B, paragraph 5410 provides:

	a.  The cost of providing RCSBP coverage under the immediate or deferred annuity option is not subsidized by the Government but is shared by members and beneficiaries who potentially will benefit from the coverage.

	b.  The cost to the retiree is in the form of an additional deduction from his or her retired pay beyond the standard SBP cost.  The RCSBP, unlike SBP, requires a reduction in the survivor annuity.  That deduction begins when the survivor begins to receive an annuity which is reduced due to RCSBP coverage.  The premium increases at the same time and by the same percentage that retired pay increases by cost-of-living adjustments.

	c.  The RCSBP participant who voluntarily terminates coverage of SBP will pay the Reserve add-on premium for the lifetime of the participant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her participation in the SBP should be terminated and she should be reimbursed all associated premiums for this benefit because her RCSBP/SPB options were not accurately explained to her while she was on active duty.  However, her record does not contain any information and she failed to provide any independent evidence documenting the information she received during that time was inaccurate.

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 1883 was provided to the applicant as an attachment with her 20-year letter and it identified the details regarding all RCSBP options.  After receiving the details regarding each of the RCSBP options, the applicant elected "spouse and children" RCSBP coverage based on the full amount under option C.  The DD Form 1883 shows her decision regarding her RCSBP election 

was irrevocable and she authenticated this document thereby confirming her awareness of this information.

3.  In addition, the 20-year letter confirms the applicant was given 90 days to make her RCSBP election and she was informed if she did not elect participation in the plan within that time, she would have to wait to until she applied for retired pay at age 60 to request SBP coverage.  The applicant admits she elected immediate coverage under the RCSBP because she had six small children and her spouse was also on active duty.  Therefore, had anything happened to the applicant from the time she elected "spouse and children" RCSBP coverage under Option C, her eligible beneficiaries would have received an annuity based upon this coverage.

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.  The applicant was retired on 25 March 2011 and she received her initial retired payment on
1 April 2012.  She will reach the second year anniversary from the official start date of her retired pay on 1 April 2014.  Accordingly, her window of opportunity to request termination of SBP coverage will become effective and remain open from 1 April 2014 through 31 March 2015.

5.  The DD Form 1883 the applicant completed clearly pertained to her Reserve service and her notice of eligibility for non-regular retirement.  It had nothing to do with the fact that she was serving a period of active duty when she received it.  The applicant is informed that she may apply to DFAS for termination of SBP coverage on 1 April 2014.  However, if she elects to terminate SBP coverage, she will still be required by law to pay the RCSBP add-on cost for the remainder of her lifetime in order to pay for the protection her beneficiaries enjoyed from her 1991 election until her application for retired pay.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110022920



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ABCMR Record of Proceedings (cont)                                         AR20110022920



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