IN THE CASE OF:	

		BOARD DATE:	    5 June 2012

		DOCKET NUMBER:  AR20110023808 


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, that deductions for his children under the Survivor Benefit Plan (SBP) be stopped.  

2.  The applicant states, in effect, that SBP deductions are still being made for his children who are no longer eligible to receive the benefit.  He further states that he was not properly informed that the deduction would continue after they became ineligible to receive the benefit and he was not properly briefed on his choices at the time of discharge. 

3.  The applicant provides a copy of his DD Form 1883 (SBP Election Certificate), dated 13 September 1987; his marriage license, dated 6 February 1990; a letter from the Defense Finance and Accounting Service (DFAS); his 
DD Form 2656 (Data for Payment of Retired Personnel), dated 10 September 2008; and an unidentified page from an unknown source.

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 24 September 1948 and he enlisted in the Kansas Army National Guard (KSARNG) on 1 June 1967.  He continued to serve through a series of continuous reenlistments in both the Kansas and Colorado ARNG.  He was promoted to the pay grade of E-6 on 11 September 1979.

3.  On 21 August 1987, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

4.  On 13 September 1987, he submitted his DD Form 1883 indicating that he was not married and elected full children only coverage under option C (immediate coverage).  On the back of that form, which also contains the applicant’s signature and date is an explanation of the monthly cost and annuity.  It clearly explains that for an election of eligible “children only” the cost of the coverage will vary depending on the applicant’s age and the age of the youngest child, but will usually be about 3% of the amount of retired pay designated.  Cost for child only coverage continues for the life of the Reservist.   

5.  On 31 October 1989, he was honorably discharged from the KSARNG and was transferred to the U. S. Army Reserve Control Group (Retired).  He had 22 creditable years of service for retired pay purposes.

6.  On 24 September 2008, the applicant was placed on the Army of the United States (AUS) Retired List in the rank of staff sergeant.

7.  On 10 March 2011, DFAS dispatched a letter to the applicant advising him he elected child only coverage under the Reserve Component SBP (RCSBP) when he made a pre-retirement election and that there would always be a deduction for that option even if his child was ineligible.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that deductions from his retired pay for the RCSBP should be stopped has been noted and appears to lack merit.

2.  It is clear that the applicant completed a DD Form 1883 on 13 September 1987 electing full RCSBP coverage for his minor children.  At the time, he had three options to choose from, two of which were irrevocable, and he chose to irrevocably enroll in the RCSBP Option C with immediate full children coverage.  Based upon his election of Option C, had the applicant died prior to reaching age 60, his children would have been eligible to receive full RCSBP entitlements.  His DD Form 1883 warned him that child only coverage continues for the life of the Reservist.  He is now paying for the protection his children enjoyed as minors.

3.  There is no evidence in the available records, and the applicant has not provided sufficient evidence, which shows 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 RCSBP in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  __X____  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20110023808



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ABCMR Record of Proceedings (cont)                                         AR20110023808



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