IN THE CASE OF:	  

		BOARD DATE:	  12 September 2013

		DOCKET NUMBER:  AR20130002294 


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).

2.  The applicant states he received his "Twenty-Year" letter in December 2001. On 18 December 2001, he completed a DD Form 1883 (SBP Election Certificate) to participate in the Reserve Component Survivor Benefit Plan (RCSBP).

   a.  He states that S-1 officials of the Oklahoma Army National Guard (OKARNG) did not provide adequate counseling or information on the RCSBP.  

   b.  At the time, he had no idea what RCSBP option to elect.  In addition, he didn't know what his financial situation would be upon retirement.  He was advised that "everyone just checks the spouse and children option" (Option B) because, if the service member dies, their spouse receives the benefit at no cost. So, that's what he elected.  Other options were not discussed or explained to him and he was told that he could change his election at a later date.

   c.  On 4 January 2011, the SBP was fully explained to him.  He completed a DD Form 2656 (Data for Payment of Retried Personnel) and elected not to participate in the SBP.  He pursued commercial life insurance and found better coverage.  He adds that his previous RCSBP election costs a substantial amount ($241.00 a month) and he needs the money that is being withheld from his retired pay in order to purchase the commercial life insurance.
3.  The applicant provides copies of his "Twenty-Year" letter, DD Form 1883, 
DD Form 2656, and a statement by his spouse.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the U.S. Army from 
26 January 1973 through 21 January 1981.

2.  On 21 November 1988, after a break in military service, he enlisted in the Army National Guard of the United States and OKARNG.

3.  On 4 December 2001, the Director, Personnel and Administration, OKARNG, Oklahoma City, OK, notified the applicant of his eligibility for retired pay upon application at age 60.  (The applicant was born in July 1954.)  An SBP Summary is listed as an enclosure to the letter.

4.  A DD Form 1883 shows the applicant indicated he was married to Patti L. D--- on 23 September 1978 and that he had dependent children (not listed).

   a.  He elected spouse only coverage based on the full amount of retired pay with RCSBP Option B (coverage at age 60).  The applicant and his spouse placed their signatures on the document on 12 December 2001.

   b.  Section V (Additional Information), item 18 (Is this the only election of coverage you have submitted under the new SBP?), shows the applicant placed an "x" in the "Yes" block.  The applicant and a witness placed their signatures on the document on 18 December 2001.

   c.  An ARPC Form 3854 (Reserve Component Supplemental SBP Election Certificate (RC-SSBP)), dated 18 December 2001, shows the applicant declined to elect the additional coverage.

5.  U.S. Army Human Resources Command, Fort Knox, KY, Orders P10-941893, dated 5 October 2011, placed the applicant on the retired list effective 10 April 2012 in the rank of command sergeant major/pay grade E-9.

6.  In support of his application, the applicant provides the following documents:

   a.  A DD Form 2656, completed on 4 January 2011, that shows the applicant indicated he was married to Patti L. D--- on 23 September 1978 and that he had no dependent children.  He elected not to participate in the SBP.  The applicant and his spouse placed their signatures on the document and the document was notarized.
   b.  A notarized statement by Patti L. D---, the applicant's spouse, dated
11 January 2013, in which she provides her:

* concurrence with the applicant's SBP election change to terminate his SBP coverage
* acknowledgement that she understands the decision is irrevocable
* understanding that she is waiving her rights to any post-death SBP benefits

7.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

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 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 (costs for option C being the more expensive).  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.

9.  Section 1448, Title 10, U.S. Code, provides that if a person makes an election not to participate in the SBP, the person's spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child, but not for his spouse.

10.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his participation in the SBP should be terminated because he was not provided adequate counseling on the RCSBP during his retirement processing and he has since decided that commercial life insurance offers better coverage for his family's future needs.

2.  Records show that in December 2001 the applicant was notified of his eligibility for retired pay upon application at age 60.  He was also provided an SBP Summary at that time.
   
   a.  He elected spouse only coverage based on the full amount of retired pay with RCSBP Option B (coverage at age 60) and the applicant, his spouse, and a witness signed the document.

   b.  Records show he was offered, but declined to elect additional coverage.

3.  He was provided an SBP Summary and it appears he knew enough about the SBP to decline additional coverage.  Thus, despite the applicant's contention that he was not provided adequate counseling on the SBP, based on the evidence of record, this does not appear to be the case and there does not appear to be an administrative error on the part of the government in this case.

4.  Therefore, there is insufficient evidence to support the applicant's requested relief.

5.  The applicant is advised that retirees have a 1-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from the SBP.  However, the spouse's concurrence is required and no premiums will be refunded to those who opt to disenroll.  The applicant may obtain a copy of a DD Form 2656-2 (SBP Termination Request) from the Official Department of Defense Issuances (Forms Management Program) website at: http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm.

6.  The applicant is also advised that he and his spouse may contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding this matter.  A listing of RSOs by country, state, and installation is available on the Internet at:  http://www.armyg1.army.mil/RSO/rso.asp



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)                                         AR20130002294



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ABCMR Record of Proceedings (cont)                                         AR20130002294



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