IN THE CASE OF:
BOARD DATE: 7 January 2014
DOCKET NUMBER: AR20130006753
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 discontinuance of participation in the Survivor Benefit Plan (SBP).
2. The applicant states when he made his election in 1996, it was to decline participation in the program. Both forms completed at that time clearly show that they declined participation. He has been advised that an entry, at item 9, should not have been made but because one was the election defaulted to show an election to participate. If the form was incorrect it should have been returned to him for correction.
3. The applicant provides copies of:
* DD Form 1883 (Survivor Benefit Plan Election Certificate)
* ARPC Form 3854 (Reserve Components Supplemental Survivor Benefit Plan Election Certificate (RC-SSBP))
* Georgia Military Division Orders 364-003
* Automated Separation Document National Guard Bureau (NGB) Form 22
* Marriage Certificate
* Declination statement from the applicant's spouse
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, a retired chief warrant officer four, born in March 1948, completed 20 years of creditable service for Reserve retirement in 1996.
3. A DD Form 1883 dated 14 February 1996 shows at item 8e - none and 9c election of Option A deferred.
4. An ARPC Form 3854 dated 14 February 1996 has block 1 marked declining coverage under RCSBP.
5. The applicant was transferred to the Retired Reserve effective 15 February 2001.
6. A DD Form 2656 (Data for Payment of Retired Personnel), dated 8 March 2006, on file with the Defense Finance and Accounting Service (DFAS) shows the applicant elected spouse only coverage based on his full gross pay without supplemental SBP. This form is not signed by his spouse.
7. 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. elect to decline enrollment at that time 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 members 60th birthday;
c. elect that a beneficiary receive an annuity immediately upon their death if before age 60.
8. If a member elects Option A, they may elect to participate when they reach age 60. Any Option B or C election is irrevocable.
9. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage.
DISCUSSION AND CONCLUSIONS:
1. The manner in which 1996 election form was completed is the standard manner for RC Soldiers who wish to retain their option of electing coverage at age 60.
2. In March 2006, the applicant submitted a DD Form 2556 to DFAS providing his retirement pay information; this form also contains an SBP participation election. Because this election was for full coverage no spousal consent was required.
3. With the record of a deferred election in 1996, the clear election of full benefits in 2006, and no specific declination of SBP participation at the time the applicant became eligible to receive his retired pay in 2008, it was appropriate for DFAS to determine that the applicant had elected to participate in the SBP.
4. Had the applicant not made the clear SBP election in 2006, his argument of not understanding the original 14 February 1996 election form could be given credence; however, because he clearly elected full coverage in 2006 this argument is without merit.
5. There is no evidence that the applicant submitted a declination of SBP after March 2006 and before March 2008. As RCSBP/SBP elections are irrevocable after the date of receipt of retired pay, there is insufficient evidence to warrant granting 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) AR20130006753
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ABCMR Record of Proceedings (cont) AR20130006753
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