IN THE CASE OF:	  

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120004655 


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 the DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate), dated 17 August 1987, be expunged from his records.  

2.  The applicant states he was processing for retirement in August 1987 with 36 years of service.  He completed the DD Form 1883 as part of his retirement package.  During this process, he was asked to continue his service and his retirement was withdrawn.  He served another 5 years and completed a total of 41 years of service with no gray area time involved.  He did not understand all the effects of this form on his retirement and he thought the form was withdrawn when his retirement package was cancelled in 1987.  The basic SBP premium is more than adequate to support his spouse in the event of his death.  

3.  The applicant provides a copy of his:

* DD Form 1883, dated 17 August 1987
* Self-authored calculations of premiums
* Self-authored chronology of retirement and cancellation
* February 2012 Retiree Account Statement
* Extract of a military magazine

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 17 June 1932.

2.  Having had prior enlisted service in the U.S. Air Force, Army National Guard (ARNG), and U.S. Army Reserve (USAR), the applicant was appointed as a captain in the Oklahoma Army National Guard (OKARNG) on 15 April 1966.  He served in various staff or leadership positions.

3.  On 3 December 1971, the National Guard Bureau (NGB) issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

4.  He and his spouse, Micaela, were married on 12 December 1975.

5.  On 9 September 1979, he completed a DD Form 1883 wherein he indicated that he was married and he had a dependent child (Leslie, born 5 August 1969).  He elected "children only" coverage, full amount, option C (immediate coverage), under the Reserve Component SBP (RCSBP).  He and a witness authenticated this form by placing their signatures in the appropriate blocks.  His spouse at the time, Micaela, concurred with his election.

6.  On 15 February 1983, he and Micaela were divorced. 

7.  On 22 September 1983, he and Lois were married.  

8.  On 17 August 1987, he completed DD Form 1883 wherein he listed his retirement date as "17 June 1992."  He indicated that he was married and he had no dependent children.  He elected "spouse" coverage, full amount, option C (immediate coverage), under the RCSBP.  He and a witness authenticated this form by placing their signatures in the appropriate blocks.

9.  On 30 May 1991, the OKARNG published Orders 116-1 ordering the applicant's discharge from the ARNG and transfer to the USAR Control Group (Reinforcement). 

10.  On 3 January 1992, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated that he was married to Lois but had no dependent children (he still listed his daughter Marsha) and he elected "spouse" SBP coverage based on the full amount.  He authenticated this form and his spouse at the time, Lois, also authenticated it by placing her signature in the appropriate block.

11.  On 18 May 1992, the U.S. Army Reserve Personnel Center, St. Louis, MO, published Orders P05-302224 placing the applicant on the retired list in the rank of colonel (COL) effective 17 June 1992, his 60th birthday.
12.  On 26 May 1999, the Army Board for Correction of Military Records granted him relief in that it recommended, among other things:

* Voiding the NGB Orders, dated 14 June 1991, that withdrew his Federal recognition
* Showing he remained in the OKARNG through 30 June 1992 with entitlement to back pay and allowances and retirement point credit
* Transferring him to the Retired Reserve and placement on the retired list on 30 June 1992 in the rank of brigadier general (BG)

13.  On 15 March 2000, the OKARNG revoked Orders 116-1, dated 30 May 1991 that transferred the applicant to the USAR Control Group (Reinforcement)

14.  On 13 October 2004, the OKARNG published Orders 287-0122 transferring him to the Retired Reserve effective 30 June 1992.

15.  On 16 September 2005, the U.S. Army Human Resources Command, St. Louis, MO, published Orders P05-302224A01 amending Orders P05-302-224, dated 18 May 1992, that placed him on the retired list in the rank of COL effective 17 June 1992, his 60th birthday, to show he was placed on the retired list in his retired grade of BG.  

16.  He submitted:

	a.  Self-authored calculations regarding a comparison of total premium payments from the date of retirement to June 2011 and a second self-authored continuation of additional calculations.  

	b.  February 2012 Retiree Account Statement that shows he has "spouse" SBP coverage, at the monthly rate of $282.13 for the SBP portion and the monthly rate of $73.79 for the RCSBP portion.

	c.  Extract of a military magazine, dated March 2011, that explains the computation rules for the RCSBP and SBP.

17.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

18.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  An Open Season was established from 1 October 1978 – 30 September 1979; later extended to         31 March 1980.  Three options were available:  

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

Once a member elects either option B or option 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 - the options automatically roll 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.

19.  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.  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 evidence of record shows the applicant executed a DD Form 1883 on     9 September 1979 and on 17 August 1987, electing "spouse" coverage under option C, immediate coverage.  This means in the event he died before reaching age 60, his beneficiary would have been entitled to an annuity; however, he would not have to pay premiums for this coverage until age 60.  It is not known why he completed a form on 17 August 1987, since his 9 September 1979 form appears to be valid and to have been completed during the initial Open Season for RCSBP.


2.  Once a member elects either option B or option 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 - the options automatically roll into SBP coverage.  Thus, the election he made in 1992 (DA Form 4240, which incidentally was for the same type of coverage) was invalid because he did not have that option.

3.  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.  This cost is the cost of coverage the applicant enjoyed between the date he made the election in 1979 and the date he turned 60.  Had he died during this period, his beneficiary would have been entitled to the annuity.  

4.  He contends that the SBP election he made in 1992 would have been sufficient to support his spouse in the event he died and thus there was never a need for the RCSBP election in 1979.  This argument lacks merit because if he had died prior to age 60, the RCSBP election he made in 1979, prior to age 60, would have entitled his beneficiary to an annuity.  He already reaped the benefit of that election.

5.  The decision to enroll in or disenroll from the SBP/RCSBP is a personal decision made by the member and his/her family.  In this case, the applicant made an irrevocable decision to enroll in the RCSBP in 1979.  More than 30 years have passed since he made the election and 20 years since he retired.  Notwithstanding his computations and calculations of what is best for him and his family, there is no material error or injustice and no compelling reason for changing his coverage at this late date.

6.  In view of the circumstance of this case, the applicant is not entitled to 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)                                         AR20120004655



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ABCMR Record of Proceedings (cont)                                         AR20120004655



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