PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 February 2001                   
	DOCKET NUMBER:   AR2000039216

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

	Mr. Carl W. S. Chun		Director	
	Mrs. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Margaret K. Patterson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests termination of his Reserve Component Survivor Benefits Plan (RCSBP).

3.  The applicant states in effect, that after reading about the SBP termination in the Army Echoes he decided to submit a request to terminate his participation in the RCSBP.  He completed the required termination form; he had it notarized and mailed it to Defense Finance & Accounting Service, Cleveland Center (DFAS-CL) on 9 April 1999.  He waited several months for a reply, before calling DFAS on 27 September 1999.  He was told that they had not received his termination request and that he should send it again.  He sent copies of his original request on the same day by certified mail and requested a returned receipt.  After receiving his receipt he called DFAS again, he was told again that they did not have his request.  He was told at that time to fax his request and a determination would be made upon receipt.  After receiving the transmission verification he called the clerk back to verify receipt she told him that she had his information. He waited a short time before calling DFAS again.  The clerk that he spoke with in September was not in the office at the time, he was transferred to her supervisor who assured him that the clerk would returned his call, which never occurred.  On 8 February 2000, he called DFAS and talked with the same clerk. She informed him that she gave his request to someone to process and that she did not know what happened to it.  He was asked to fax his information again and within a few hours he received a call from the clerk stating that his request had been rejected.  At that time he asked the clerk if he was the only person having this problem and her answer was no.  He is requesting that the Board reverse this denial of his SBP termination.  The applicant submits a copy of the notarized Termination Request DD-Form 2656-2, a copy of the certified mail receipt and copies of the fax verification sheets.

4.  The applicant’s military records show that he was born on 8 June 1936.  He enlisted in the Army National Guard on 31 August 1954.  His record also shows that he was married on 3 July 1956.  On 22 August 1979, the applicant received notification of his eligibility for retired pay at age 60 (his 20 year letter).  On 
26 September 1979, the applicant enrolled in the RCSBP for spouse only coverage, full base amount, option C.  On 8 June 1996, the applicant was placed on the retired list.

5.  The SBP termination request form (DA Form 2656-2), furnished by the applicant shows his spouse’s concurrence and it also shows that it was notarized on 9 April 1999.  The certified mail receipt shows that the applicant’s second request was received by DFAS on 30 September 1999.

The fax transmission verification sheets furnished by the applicant also show that DFAS received his request.

6.  The applicant stated that on 27 September 1999, he made his first telephone inquiry to DFAS-CL, however there is no evidence of this telephone inquiry.

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.  A member must make 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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.

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.  Members retired for more than two years as of 17 May 1998 were authorized a one-year opportunity (17 May 1998 through 16 May 1999) to disenroll.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.

CONCLUSIONS:

1.  The Board concludes that it was the applicant’s intent to terminate his enrollment in the RCSBP within his eligibility period.  Through no fault of the applicant his request was not handled in a timely manner.  Therefore, in the interest of justice, relief should be granted.  His records should be corrected to show that he disenrolled from the RCSBP on 9 April 1999, and to refund the premiums paid from that date to the present.

2.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant disenrolled from the RCSBP on 9 April 1999, to be effective 1 May 1999.

2.  That the applicant be refunded all RCSBP premiums paid into the program from 1 May 1999 to the present, as a result of the above correction.

BOARD VOTE:  

__fne___  __mhm___  __mjp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000039216	
SUFFIX		
RECON		
DATE BOARDED	20010215	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.0300	
2.		
3.		
4.		
5.		
6.