IN THE CASE OF:	  

		BOARD DATE:	  21 August 2014


		DOCKET NUMBER:  AR20140012509 


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 records to show he elected enrollment in the Reserve Component Survivor Benefit Plan (RCSBP) under Option A instead of Option C. 

2.  The applicant states he received his RCSBP application in 1994.  He was told to put Option C.  He was not counseled on the cost or life events that he had one year to submit a change to his election.  For a retiring Soldier, this is a lot of money.  If he had known at the time, he would not have made this election. 

3.  The applicant provides:

* Statement from a retirement noncommissioned officer (NCO)
* DD Form 1883 (SBP Election Certificate)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 7 September 1955.  He and his spouse, Barbara, were married on 31 July 1978.  

2.  Having had prior service in the Regular Army, the applicant enlisted in the Kentucky Army National Guard (KYARNG) on 31 July 1977.  He served through multiple extensions in a variety of assignments and he attained the rank/grade of master sergeant (MSG)/E-8.  

3.  On 4 November 1993, the KYARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

4.  On 5 March 1994, he completed a DD Form 1883.  He indicated he was married to Barbara and they had dependent children (a daughter, born in 1981, and a son, born in 1984).  He further elected "spouse and children" coverage, full base amount, option C (immediate coverage), under the RCSBP.  His spouse, Barbara, concurred with his election.  The DD Form 1883 states:

* Important:  The decision you make with respect to participation in this SBP is a permanent irrevocable decision.  Please consider your decision and its effect very carefully
* If the retiree does not elect Option B or C at this time, and should die before age 60, the survivors will not receive benefits under Public Law   95-397

5.  On 10 October 2000, the applicant and Barbara were divorced.  Their divorce decree stated that they had been married on 30 July 1977 (different than the date listed on his DD Form 1883) and had been living separately since 13 August 1997.  Their divorce decree is silent with respect to the RCSBP/SBP. 

6.  The applicant married Carolyn on 30 September 2004. 

7.  He entered active duty on 1 June 2011 and subsequently served in Iraq from 31 July 2011 to 12 December 2011.  He was honorably released from active duty to the control of his State on 30 January 2013. 

8.  The applicant is still serving in the ARNG and he will turn 60 years of age in September 2015. 

9.  He provides a statement from a retirement NCO.  She states the applicant came to see her regarding his retirement.  He did not understand the RCSBP.  She explained it to him and he became upset that he was not told this in 1994 when he filled out the form.  He wants his election changed from Option C to Option A because he did not understand the cost associated with this election.  He has significant private insurance and he does not need this particular benefit. He was told to select Option C.  However, if he had known otherwise, he would have not done so.  If the Board rules in his favor, his spouse would sign a notarized statement. 

10.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

11.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were 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

12.  Once a member elects either option B or option 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; the options automatically roll 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 had the member died prior to age 60.

13.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse's written concurrence is required.  No premiums will be refunded to those who opt to disenroll.  Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay.

DISCUSSION AND CONCLUSIONS:

1.  Upon receipt of his 20-year letter, the applicant completed a DD Form 1883 wherein he elected to participate in the RCSBP for spouse and children, Option C (immediate coverage), based on the full amount.  His spouse, Barbara, concurred with his election.  

2.  The applicant now states he was not properly counseled in 1994.  Yet, when he completed this form, he acknowledged:

* The decision he made with respect to participation in this SBP is a permanent irrevocable decision and he should consider his decision and its effect very carefully
* If the retiree (the applicant) does not elect Option B or C at this time, and should die before age 60, the survivors will not receive benefits under Public Law 95-397

3.  The applicant knew or should have known that RCSBP participants do not make a new election once they turn age 60 (because he was warned that his RCSBP election was irrevocable).  Their RCSBP election rolls over into the standard SBP.  Once 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 had the member died prior to age 60.  Of note, once retired for more than 2 years, a retiree can cancel SBP provided the spouse concurs and the request is properly submitted.  This decision to cancel is irrevocable. 

4.  The decision to participate or decline participation in the RCSBP/SBP is a personal decision that is made based on each member's unique situation/needs. His argument that he was not properly counseled is rejected and 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)                                         AR20140012509



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ABCMR Record of Proceedings (cont)                                         AR20140012509



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