MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 April 2002                   
	DOCKET NUMBER:   AR2001062537

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. John T. Meixell		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:  In effect, that his records be corrected to show he did not enroll in the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT STATES:  That he knew an error had been made with respect to the RCSBP when he received his retirement information letter dated 24 July 2001.  He checked with the Defense Finance and Accounting Service (DFAS).  DFAS located a partially completed Survivor Benefit Plan Election Certificate, DD Form 1883.  Only side 1 of the form was ever completed, which makes the form invalid. 

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

He was born on 18 July 1941.  He initially enlisted in the Regular Army on         31 August 1959.  He entered the U. S. Army Reserve (USAR) as a commissioned officer in 1966.  He transferred between the USAR and the Army National Guard several times but always had continuous service.  A statement of retirement point history is not available and it is not known when he obtained 20 qualifying years for a non-regular retirement.  

On 5 December 1980, the applicant completed a DD Form 1883.  In section II, he checked that he desired spouse only coverage, full base amount, option C.  Section II also stated, “IMPORTANT:  The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully.”  The applicant signed the form in section VI.  The reverse side of the DD Form 1883 required the applicant’s signature only if he did not elect option B or C at that time.  The DD Form 1883 was apparently received at the Army National Guard Personnel Center on 16 April 1981.

The applicant received a notification of eligibility for retired pay at age 60 (his   20-year letter) from the National Guard Bureau dated 13 July 1981.  He received another one from the U. S. Army Reserve Components Personnel and Administration Center dated 18 April 1983.

On 1 March 2000, the applicant completed a Data for Payment of Retired Personnel, DD Form 2656.  In section IX, items 26 and 27 he checked that he elected spouse only coverage, full base amount.  The instructions on pages 3 and 4 of the DD Form 2656 were that reservists who had elected RCSBP coverage were not to complete items 26 – 31 but were to attach a copy of the DD Form 1883.

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 should the member have died prior to age 60.

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 the 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.

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

1.  The evidence of record shows that the applicant elected to enroll in the RCSBP for spouse only coverage, option C on 5 December 1980, with the DD Form 1883 being received at the Army National Guard Personnel Center on       16 April 1981.  Although there appears to be some question as to whether he had received a 20-year letter at the time he completed the DD Form 1883, there is only a statutory requirement for making an RCSBP election within a 90-day window after receipt of the 20-year letter.  There is no statutory prohibition against making the election prior to receiving the 20-year letter.  In addition, the applicant signed the DD Form 1883 in the proper place, section VI.  The reverse side of the form only had to be signed if he did not elect option B or C.  Once the applicant signed the DD Form 1883 in the proper place, his election was irrevocable.  There was no need for him to make a further election on the DD Form 2656.  In fact, the instructions were that he should not have completed the SBP section of the DD Form 2656.

2.  If the applicant desires to withdraw from the SBP, he will have a one-year window of opportunity to do so beginning 18 July 2003.  No premiums will be refunded and the Reservist Portion cost will continue to be deducted from his retired pay to pay for the protection his spouse received from the date he completed the DD Form 1883 until the date he reached age 60.

3.  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

__inw___  __mmd___  __jtm___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001062537	
SUFFIX		
RECON		
DATE BOARDED	20020416	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.