IN THE CASE OF:	

		BOARD DATE:	29 September 2015

		DOCKET NUMBER:  AR20150002140


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, in effect, correction of her military records to show she declined the Survivor Benefit Plan (SBP) at the time she applied for retired pay.

2.  The applicant states she elected Reserve Component SBP (RCSBP) in 1993 when she was a “Gray Area” retiree.  She did this because she had young children and it was several years prior to her receiving retired pay.  Now her children are grown and she has no further need.  Accordingly, when she applied for retired pay at age 60, she declined SBP coverage going forward.  However, her retired pay statement shows RCSBP deductions for past years as well as SBP going forward.  She called the office of military pay and was told that she had to contact this Board for further discussion.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 15 July 1954.  She entered the U.S. Army Reserve (USAR) on 23 August 1972.

2.  The applicant was married on 22 December 1984.  Her two children were born in 1988 and 1991.



3.  On 22 March 1993, the USAR Personnel Center issued the applicant a 
20-Year Letter.  This letter notified her that she had completed the required years of service to be eligible for retired pay at age 60, upon application.  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.  if she did not submit an election within 90 calendar days, she would not be entitled to SBP coverage until she applied for retired pay at age 60; and

	e.  if she did not elect coverage and should die before reaching age 60, her survivor(s) would not be entitled to benefits.

4.  On 28 December 1993, the applicant made an RCSBP election for spouse and children coverage based on her full retired pay.  She elected option C for immediate coverage.  This election was submitted about 9 months after the date of the applicant’s 20-Year Letter.

5.  The applicant’s AHRC Form 249 (Chronological Statement of Retirement Points) dated 18 July 2014, indicates she was transferred to the Retired Reserve on 9 August 1994.  It also shows that she completed 20 qualifying years of service towards a non-regular retirement.

6.  On 10 September 2013, the applicant signed her DD Form 2656 (Data for Payment of Retired Personnel) wherein she elected not to participate in SBP.  The form further indicates that the applicant’s spouse had signed the form on 
17 August 2013 concurring with the applicant’s election.

7.  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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  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 had the member died prior to age 60.

8.  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 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.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected to show she declined the SBP at the time she applied for retired pay because her children are now grown and she has no further need.

2.  The applicant elected RCSBP as intended in order to provide coverage for her spouse and children had she died during the time she was in the “gray area.”  

3.  Although the applicant then attempted to decline coverage when she turned 60 years of age, this is not a permissible election.  Her RCSBP spouse and child coverage automatically converted to SBP coverage.  This explains why DFAS is collecting both RCSBP and SBP premiums.  The RCSBP premiums represent payment for the past coverage while in the gray area and the SBP premiums represent her current coverage.



4.  The applicant is advised that she has the option of disenrolling from SBP during a one-year period beginning on the second anniversary of the date on which their retired pay started.  Her spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  Reservists, such as the applicant, who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay.  The effective date of termination of the SBP coverage going forward is the first day of the first calendar month following the month in which the election is received by the Secretary         concerned.

5.  In view of the above, the applicant’s request should be denied.

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)                                         AR20140003941



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ABCMR Record of Proceedings (cont)                                         AR20150002140



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