IN THE CASE OF:    

		BOARD DATE:  25 November 2014	  

		DOCKET NUMBER:  AR20140005587 


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 correction of his military records to show:

* he declined Reserve Component Survivor Benefit Plan (RCSBP) coverage for his spouse
* his retired rank is chief warrant officer four (CW4) to enable retired pay in that rank

2.  The applicant states, in effect:

* SBP premiums are being deducted from his pay because he forgot to check the box declining the coverage after his wife's death
* Defense Finance and Accounting Service (DFAS) is paying him as a retired chief warrant officer three (CW3) despite his promotion to CW4

3.  The applicant provides:

* wife's death certificate
* U.S. Total Army Personnel Command memorandum, dated 18 July 2000, promoting him to CW4

CONSIDERATION OF EVIDENCE:

1.  The applicant joined the Army National Guard (ARNG) on 5 February 1981 as a warrant officer with prior Reserve Component service and active Federal service.  He was issued his 20-year letter on 9 November 1999.

2.  The applicant signed a DD Form 1883 (SBP Election Certificate) on 8 January 2000 at the age of 47, electing full spouse and children coverage, Option C, for immediate coverage.  At the time of his election the applicant was married.  His daughter was 23 years old and his son was 14 years old.

3.  The applicant provided a copy of a State of Illinois Medical Examiner's – Coroner's Certificate of Death showing his wife's date of death was 19 March 2001.

4.  He was separated from the Illinois ARNG on 2 May 2001 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  (Once a Soldier is transferred to the USAR Control Group (Reinforcement), he becomes a member of the USAR in an active status.)

5.  After separation from the ARNG, he was promoted as a Reserve commissioned warrant officer to the rank of CW4 with an effective date of 18 July 2002 per U.S. Total Army Personnel Command memorandum, dated 18 July 2002.

6.  The applicant was released from the USAR Control Group (Reinforcement) on 27 December 2006 and transferred to the USAR Standby Reserve (Inactive Status List).  Reassignment Orders C-12-643012 issued by the U.S. Army Human Resources Command reflect his rank as CW4.

7.  He was released from the USAR Standby Reserve (Inactive Status List) on 14 January 2008 and assigned to the Retired Reserve.  Reassignment Orders 
C-01-800744 issued by the U.S. Army Human Resources Command reflect his rank as CW4.

8.  The applicant was placed on the Retired List on 21 June 2013 in accordance with U.S. Army Human Resources Command Orders C02-491462, dated 25 February 2014.  The orders reflect the applicant's retired rank as CW3.

9.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service), paragraph 2-11, prescribes policies and procedures for computation of retired pay for Army National Guard and Army Reservist Soldiers.  It states that if the Soldier was transferred to the Retired Reserve or discharged on or after 24 February 1975, retired grade will be that grade which a commissioned officer or enlisted Soldier held while on active duty or in an active reserve status for at least 185 days or 6 calendar months.  A warrant officer must have served on active duty or in an active reserve status for at least 31 days.

10.  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.

11.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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 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, and (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 option 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 converts to 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 die prior to age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected to show his retired rank as CW4 to enable him to receive retired pay in this rank.

2.  A warrant officer transferred to the Retired Reserve or discharged on or after 24 February 1975 will hold the grade/rank which the warrant officer held while on active duty or in an active Reserve status for at least 31 days.

3.  The available evidence shows he was promoted as a Reserve commissioned warrant officer to the rank of CW4 with an effective date of 18 July 2002 while he was in the USAR Control Group (Reinforcement).  The applicant was released from the USAR on 26 December 2006.  Therefore, the applicant is entitled to correction of his rank to CW4.

4.  The applicant also contends his military records should be corrected to show he declined SBP coverage for his spouse after her death because he forgot to do so at the time.

5.  The available evidence shows the applicant made a valid election after he received his 20-year letter to provide full coverage, option C, for his wife and dependent children.  His wife died about 14 months later.

6.  Once a member elects option C in any category of coverage, that election is irrevocable.  Option C RCSBP participants do not make a new SBP election at age 60 and cannot cancel SBP participation or change the option they had in RCSBP.  Any RCSBP deduction currently being taken from the applicant's retired pay would be a premium related to the child coverage enjoyed by his minor son from age 15 until he reached age 18 or 22, if attending school.

7.  The applicant's spousal coverage should have gone into a suspended status upon his wife's death.  Assuming he did not remarry, there should be no RCSBP/SBP spousal premiums being taken from his retired pay, provided he informed DFAS of his wife's death.  The applicant may provide additional information on this point if he still believes an error exists.

8.  In view of the above, the applicant's request for records correction to reflect declination of SBP should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reflecting the applicant's retired rank as CW4 and paying him all due back retired pay.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so 


much of the application that pertains to amendment of the applicant's records to show declination of RCSBP coverage for his spouse.



      _______ _   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)                                         AR20140005587



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ABCMR Record of Proceedings (cont)                                         AR20140005587



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