IN THE CASE OF:	  

		BOARD DATE:	  1 April 2014

		DOCKET NUMBER:  AR20130012038 


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 he be allowed to amend the default election of his Reserve Component Survivor Benefit Plan (RCSBP) to show he elected not to participate.

2.  The applicant states he served on active duty from 17 December 2004 through 9 November 2005 and he was deployed to Iraq from 16 January to       23 October 2005.  His 20-year letter was dated 16 June 2005.  Ninety days later, without action on his part, his election defaulted to Option C.  At no time during the 90-day window did he receive notice that a decision was needed nor was he allowed the opportunity to confer with a subject matter expert regarding this important decision.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 04-350-00027
* 20-year letter

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 22 June 1963, and he married his spouse on 
26 December 2002.

2.  The applicant provides and his record contains a DD Form 214 for the period 17 December 2004 to 9 November 2005 that shows he served on active duty in an imminent danger area in Iraq from 16 January to 23 October 2005.

3.  On 16 June 2005, the U.S. Army Human Resources Command, St. Louis, MO, issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  The letter stated he must make a decision with regard to the RCSBP within 90 days of the date of the letter.  In the event of mobilization and deployment, the applicant or his spouse could notify the command of his status and inability to make an election.  During the period of deployment he would be automatically covered under the SBP for spouse and children.  Upon written request for deferment, accompanied by a copy of the mobilization/deployment order, he would be granted a deferment from election.  The deferment would end 90 days following his release from active duty.  The letter is also resident in his Army Military Human Resource Record.

4.  On 1 April 2013, Headquarters, 81st Regional Support Command, Fort Jackson, SC, published orders assigning him to the Retired Reserve in his retired rank/grade of lieutenant colonel/O-5, effective 1 June 2013.  

5.  His record contains a DD Form 2656-2 (Survivor Benefit Plan Election Change Certificate), dated (signed) 28 May 2013.  He indicated that he wished to suspend spouse and child coverage in the program due to divorce.  

6.  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:

* 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

7.  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.
8.  Public Law 106-398, enacted 30 October 2000, required written spousal
consent for a Reserve service member to be able to delay making an RCSBP
election until age 60.  The law is applicable to cases where 20-year letters
have been issued after 1 January 2001.  In other words, failure to elect an
option now results in the default election of option C.  The declination,
with the spouse's consent, must be made before the end of the 90-day period
beginning on the date on which the member receives his/her 20-year letter.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Reserve Component Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  

2.  The applicant acknowledges he did not make the RCSBP election at the time because he was deployed to Iraq; however, he does not state that he did not receive the letter and therefore, he was unaware of the stipulations contained in the 20-year letter.

3.  Notwithstanding the applicant's contention, the law requires the Soldier to make an election and return the enrollment form within 90 calendar days.  Failure to elect an option results in the default election of option C.  This option provided the applicant's spouse with an immediate annuity should he have died prior to reaching age 60.  Had the applicant died prior to reaching age 60, his spouse would have been entitled to the SBP annuity.  

4.  Further, spousal concurrence is required for any election less than full spouse coverage.  The election choice is not solely that of the Soldier, but must be agreed to by the spouse.

5.  There is insufficient evidence to show an error or an injustice occurred.  As such, he is not entitled to correction of his records to show he has no RCSBP coverage.

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)                                         AR20130012038





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ABCMR Record of Proceedings (cont)                                         AR20130012038



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