MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AC9806223

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	M		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  A refund of funds collected from his retired pay for Survivor Benefit Plan (SBP) benefits.

APPLICANT STATES:  When he completed 20 years of military service, he elected his dependent son as his SBP beneficiary.  When he turned age 60, the deductions for the SBP started, but by this time his son was not eligible for SBP benefits due to his age.

EVIDENCE OF RECORD:  The applicant's military records show:

He was born on 23 January 1935.  After initially being inducted into the Army on 23 April 1954, he enlisted in the U. S. Army Reserve on 5 April 1959.  

On 26 November 1986, he received his notice of eligibility for retired pay at age 60.  

On 11 February 1987, since he was unmarried, he elected coverage of his son  as an insurable interest beneficiary under the Reserve Component SBP (RCSBP).  He elected Option C, immediate coverage if he should die before reaching age 60.

On 23 January 1995, the applicant reached age 60 and was placed on the retired list, in pay grade E-8.

Public Law 92-245, the SBP, enacted 21 September 1972, 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.  

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 member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Costs for options B and C begin to be withheld from the member’s retirement pay at age 60.

Public Law 103-337, effective 5 October 1994, allowed retirees with “insurable interest” coverage to terminate their participation.

In the processing of this case, an advisory opinion was obtained from the Army Retirement Services office.  That office noted that the applicant made a proper election to cover his son as his insurable interest beneficiary under the RCSBP.  Public Law 103-337 allowed retirees with “insurable interest” coverage to terminate their participation.  The applicant made a written request to so terminate his participation and it ended on 1 January 1996.  The opinion noted that that Law reasserted that the RCSBP premium “tack-on” charges are prorated and collected for life, even though a beneficiary is no longer eligible.  His son had RCSBP protection during his pre-age 60 time period.  The premiums are owed for this period in accordance with law.  No refund of premiums for this past protection is payable.  If the applicant’s intention is to cancel all previous participation, he must provide evidence of government administrative error in connection with his initial RCSBP election and he has not done so.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant properly made an RCSBP election covering his son as an “insurable interest.”  His son received full protection had the applicant died before reaching age 60.  When the applicant reached age 60, the premiums for that past coverage began to be withheld from his retired pay.

3.  When the law changed to allow members to terminate their “insurable interest” coverage, the applicant did so and his participation ended on 1 January 1996.  However, in accordance with the law, premiums for the past coverage still had to be prorated and collected from his retired pay.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director