IN THE CASE OF:
BOARD DATE: 27 March 2014
DOCKET NUMBER: AR20130012720
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 payments being deducted from his retired pay for the Reserve Component Survivor Benefit Plan (RCSBP) be stopped and he be reimbursed for the monies he has overpaid.
2. The applicant states he turned 60 years of age on 4 February 2010, almost 6 months after his retirement date of 12 August 2009. He is now 63 years of age and payments for the RCSBP continue to be taken out of his retired pay. He believes these payments should have ceased upon his 60th birthday per the written agreement.
3. The applicant provides no additional evidence.
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 4 February 1950. Having had prior Reserve service, he enlisted in the California Army National Guard (CAARNG) on 12 August 1998.
3. On 16 September 2002, by memorandum, the Adjutant General's Office, Sacramento, CA, issued him a memorandum, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). This memorandum notified the applicant that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.
4. His records contain a DD Form 1883 (SBP Election Certificate), dated 10 November 2002, wherein it shows that at that time he was married and had no dependent children. He elected RCSBP spouse only coverage, Option C (immediate coverage), based on the full amount of retired pay.
5. He was honorably separated from the CAARNG on 30 August 2009 and he was transferred to the Retired Reserve.
6. He was placed on the Retired List on 4 February 2010, the date he turned 60 years of age.
7. In an email, dated 19 July 2013, a Defense Finance and Accounting Service official verified the applicant has spouse only SBP coverage.
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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.
9. If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the members 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 (emphasis added).
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms the applicant elected RCSBP spouse only coverage, Option C, based on the full amount of his retired pay. As he elected Option C, he was immediately covered under the RCSBP and his spouse would have received an annuity if he had died before reaching age 60.
2. Premiums for SBP coverage start when the retired member begins collecting retired pay, which for a Reservist begins when the member turns 60 years of age. In addition, as he elected RCSBP Option C, there is an additional cost added to the SBP deduction to cover the benefit of immediate coverage from the date he made the election to the date he turned 60 years of age.
3. In view of the foregoing, he is not entitled to the requested 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) AR20130012720
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130012720
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090012273
On or about 10 December 2001, as he neared his 60th birthday, the applicant submitted a request for retired pay and although not required, he also completed a DD Form 2656 (Data for Payment of Retired Pay) in conjunction with this application and again elected spouse coverage based on the full amount. This deduction is the cost of the SBP coverage or protection the applicant's spouse enjoyed from the date the applicant made an election. The applicant appears to believe that he is locked...
ARMY | BCMR | CY2009 | 20090006521
In a separate letter to DFAS, Military Retirement Pay the applicant requested termination of the Natural Interest Person SBP coverage. The Reserve Component cost of the SBP accounts for the annuity cost if the applicant had died prior to his 60th birthday as he elected Option C (Immediate Coverage) on his DD Form 1883 that he submitted on 10 January 1991. The premium for the Reserve Component portion of the RCSBP is a debt the applicant incurred when he elected Option C. As such, his named...
ARMY | BCMR | CY2008 | 20080010058
On 16 March 2008, when he submitted his request for retired pay at age 60, the applicant elected spouse full coverage under the SBP and on 16 May 2008, when he turned 60 years of age, he began receiving retired pay with SBP deductions for spouse only. Option B and C participants do not make a new SBP election at age 60. The applicants contention that he opted not to participate in the SBP has been noted; however, prior to making that election, the applicant enrolled in the RCSBP under...
ARMY | BCMR | CY2010 | 20100000493
IN THE CASE OF: BOARD DATE: 26 August 2010 DOCKET NUMBER: AR20100000493 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests, in effect, his military records be corrected by canceling his Reserve Component Survivor Benefit Plan (RCSBP) participation for spouse and children coverage. The applicant states: * He received a Leave and Earnings Statement (LES) in December 2009 showing he was charged $95.33 for RCSBP * He did not retire until his 60th birthday * He retired while...
ARMY | BCMR | CY2010 | 20100007779
On 19 March 2008, as he neared his 60th birthday, the applicant submitted a request for retired pay and although not required, he also completed a DD Form 2656 in conjunction with this application and elected not to participate in the SBP. Reservists who elected an option under the RCSBP will continue to have the Reserve Premium add-on deducted from their retired pay. The evidence of record shows that subsequent to receiving his 20-year letter, the applicant elected to participate in the...
ARMY | BCMR | CY2007 | 20070005016C071029
John G. Heck | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. His wife is a Master Sergeant in the U. S. Army Reserve and will have her own retired pay. Once a member elects either Options B or C in any category of coverage, that election is irrevocable.
ARMY | BCMR | CY2015 | 20150002140
IN THE CASE OF: BOARD DATE: 29 September 2015 DOCKET NUMBER: AR20150002140 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. This letter further informed her that: a. she was entitled to participate in the RCSBP, as established by Public Law 95-397; b. RCSBP enabled her to provide an annuity for her spouse and other eligible beneficiaries; c. she had, by law, only 90 calendar days from the date she received this notice to submit a DD Form 1883 (Survivor Benefit Plan Election Certificate); d....
ARMY | BCMR | CY2009 | 20090007149
He argues that he clearly elected not to participate in the SBP on the DD Form 2656 and his spouse concurred. If the applicant elects to terminate his SBP participation at that time, he is advised that despite his action, the Reserve Component premium add-on will be deducted from his retired pay for life. He is further advised that in his particular case, he can withdraw from the SBP during a 1-year window beginning in December 2010, the second anniversary of his receipt of retired pay,...
ARMY | BCMR | CY2010 | 20100022618
She and the FSM were married in 1988 and he elected spouse coverage for her within the first year of their marriage. The applicant provides: * the FSM's divorce degree * the FSM's DD Form 1883 (Survivor Benefit Plan Election Certificate) * the applicant and the FSM's marriage license * the FSM's Joint Uniform Military Pay System (JUMPS)-Army Retired/Annuitant Pay Statement effective February 1991 * a letter from DFAS to the FSM, dated 1 February 1991 * the FSM's Retiree Account Statement...
ARMY | BCMR | CY2008 | 20080014824
The applicant requests that the records of her deceased spouse, a former service member (FSM), be corrected to show he elected Option C (Immediate coverage) in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage. The SBP counselor should have pointed out the inconsistencies of the FSM's elections on the DD Form 1883, made appropriate corrections, and had the FSM complete a form that clearly showed his intent. As a result, the Board recommends that all Department of the...