IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140014607 


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 that his Reserve Component Survivor Benefit Plan (RCSBP) election of spouse only coverage under Option C (Immediate coverage) based on full amount of retired pay be changed to show he declined RCSBP.

2.  The applicant states he is being treated unfairly.  He thought his grade of E-7 allowed him some credit for being honest and forthcoming on any issue.  He was a noncommissioned officer with 3 years active duty in the U.S. Marine Corps (USMC) and over 23 years in the Army National Guard (ARNG).  He did not sign up for RCSBP.

3.  He has a copy of his original DD Form 1883 (SBP Election Certificate), which clearly states he declined SBP.  He has been trying for months to get someone to help him.  He called again in July 2014 and talked with a clerk.  He looked at his DD Form 2656 (Data for Payment of Retired Personnel) which was dated December 2011.  He requested a review of his DD Form 2656 based on the information on record that he received when he talked with the clerk.  A week later he received a copy of DD Form 1883. 

4.  The applicant provides:

* his Notification of Eligibility for Retired Pay at Age 60 (20-year letter), prepared on 29 August 1996
* ARNG Retirement Points History Statement, prepared on 29 August 1996
* Spouse SBP Counseling Letter/Statement, dated 9 October 1996
* Signature Verification of Required Document Counseling, dated 
17 October 1996
* Statement by Spouse/Former Spouse of Soldier, dated 17 October 1996
* DD Form 1883, dated 17 October 1996
* DARP Form 3856-R (Reserve Component Supplemental Survivor Benefit Plan (RC-SSBP) Election Certificate), dated 17 October 1996
* U.S. Army Human Resources Command (HRC) Orders P08-940294, dated 20 August 2011
* two letters, dated 18 May 2014 and 23 July 2014, from the applicant to Defense Finance and Accounting Service (DFAS)
* two letters, dated 11 June 2014 and 28 July 2014, from DFAS to the applicant

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.  He previously completed 3 years active service in the USMC and 2 years, 
7 months, and 6 days in the USMC Reserve.  On 9 August 1979, he enlisted in the North Carolina Army National Guard (NCARNG).

3.  His 20-year letter was prepared on 29 August 1996.

4.  On 12 October 1996, his wife acknowledged receipt of a Spouse SBP Counseling Letter/Statement, dated 6 October 1996.

5.  On 17 October 1996, the applicant and his wife were counseled on the available RCSBP and RC-SSBP.

6.  On 17 October 1996, he completed a DD Form 1883.

	a.  The DD Form 1883 provided by the applicant indicates he was married and had dependent children.  The form does not show any election was made for RCSBP.  The form does not show he declined RCSBP.  The form was signed by the applicant and his wife.

	b.  The DD Form 1883 on file in the Documents Section of his Official Military Personnel File (OMPF) indicates he was married and had dependent children.  He elected spouse only coverage, based on the full amount of his retired pay, under Option C.   The applicant's date of birth shown on the form is 27 April 1952.  The form was signed by the applicant and his wife.  Two date stamps, 29 October 1996 and 28 May 1997, appear at the top of the form.  

	c.  The DD Form 1883 includes the note "The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision."

7.  A DARP Form 3856-R, dated 17 October 1996, shows the applicant declined coverage under the RC-SSBP.

8.  On 30 November 2003, he was discharged from the NCARNG and transferred to the Retired Reserve.  On 27 April 2012, he was placed on the Retired List.

9.  On 18 May 2014, he wrote to DFAS requesting a copy of his DD Form 1883.  He stated he had declined SBP, but monies were being deducted from his retired pay.

10.  On 11 June 2014, DFAS responded and provided a copy of his 
DD Form 1883.  DFAS stated that it appeared that SBP coverage for his former spouse would continue. 

11.  On 23 July 2014, he wrote to DFAS again stating he did not elect SBP coverage.  He asked that they review paperwork for DD Form 2656 for September 2011 and October 2011.

12.  On 28 July 2014, DFAS responded concerning his former spouse's entitlement to SBP.  His DD Form 1883 submitted in 1996 takes precedence over the DD Form 2656 submitted in 2011.  

13.  The DD Form 2656 the applicant submitted in 2011 is not available for review.

14.  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 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Spousal notification was required only if the member elected to participate in the RCSBP for less than full spouse coverage.  Before the law was amended, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  In other words, failure to elect an option resulted in the default election of option A.  

15.  Title 10 U.S. Code (USC) Section 1448(a)(4) (Reserve-component annuity participants) provides that elections made under the RCSBP are irrevocable if not revoked before the end of the 90-day period beginning on the date of notification of completion of years of service required for eligibility for reserve component retired pay.

16.  Title 10, USC, section 1448(b)(3) permits a person to elect to provide an annuity to a former spouse.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

17.  Title 10 USC Section 1448a (Election to discontinue participation: one-year opportunity after second anniversary of commencement of payment of retired pay) provides for the discontinuance of participation in the SBP.  An election to discontinue participation in the SBP may be made at any time during the 1-year period beginning on the second anniversary of the date on which payment of retired pay to the participant commences.  Concurrence of the participant's spouse is required.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he declined RCSBP and provided a DD Form 1883 as evidence.  The DD Form 1883 he provided does not show he declined RCSBP.  There is no election indicated on the form.

2.  However, the DD Form 1883 on file in his OMPF clearly shows he elected spouse only coverage, based on the full amount of his retired pay, under 
Option C.  If he had not elected to participate in RCSBP he would not have been required to complete the RC-SSBP Election Certificate on which he declined coverage under RC-SSBP.

3.  Title 10 USC Section 1448(a)(4) clearly states that elections under the RCSBP are irrevocable if not revoked before the end of the 90-day period from the date the individual is notified that he has completed the required amount of service for retired pay.  The applicant and his spouse were counseled on the availability of RCSBP.  Further, the DD Form 1883 clearly informed the applicant that his election was irrevocable.  Therefore, in this case, there is no basis to change his RCSBP election to participate based on full amount of retired pay under Option C.  

4.  Title 10, USC, section 1448(b)(3) permits a person to elect to provide an annuity to a former spouse.  Based on the correspondence between the applicant and DFAS it appears he is divorced from his spouse and is now providing an annuity for his former spouse.

5.  Title 10, USC, Section 1448a provides for the withdrawal from the SBP during the 1-year period from the second anniversary of the date of his receiving retired pay.  In this case, a notarized concurrence from his former spouse will be required.  The applicant should contact the Defense Finance Accounting Service for forms and procedures in making this decision.

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)                                         AR20140014607



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ABCMR Record of Proceedings (cont)                                         AR20140014607



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