MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            14 August 2003    
	DOCKET NUMBER:   AR2003087867

	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 L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Linda M. Barker		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:  That his records be corrected to show he elected Reserve Component Survivor Benefit Plan (RCSBP) option A.

APPLICANT STATES:  That the evidence clearly shows that he did not make an RCSBP election.  However, he was informed by the U. S. Army Reserve Personnel Command (AR-PERSCOM) that option C was selected by default after 90 days.  He and his spouse will be age 67 prior to receiving Social Security.  He must pay back his Special Separation Benefit (SSB).  The difference in option A and C over 7 years is approximately $30,000, over half his SSB pay back.  His wife's entitlement after age 62 will drop from 55 percent to  35 percent.  These factors will create a severe hardship on them.  They have private insurance.

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

He was born on 6 January 1959.  He was commissioned a second lieutenant in the Regular Army and entered active duty on 14 August 1981.  He was voluntarily discharged on 30 September 1992 under the SSB.  He was appointed a captain in the U. S. Army Reserve on 30 September 1992.

The applicant's notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 30 October 2002.  Paragraph 4 of the 20-year letter informed him that a qualified Reserve Component member, who is married, will automatically be enrolled in the RCSBP under option C, spouse and children coverage based on full retired pay unless the spouse's concurrence was provided to allow a different election.  He was informed he must notify AR-PERSCOM, using the enclosed DD Form 1883 (Survivor Benefit Plan Election Certificate), of his decision within 90 days of the date of the letter.  He was informed that detailed information concerning the RCSBP and costs was enclosed.  

Paragraph 4 of the applicant's 20-year letter also informed him that, "ANY WRITTEN CORRESPONDENCE (letter or forms) THAT INVOLVE A CHANGE FROM FULL COVERAGE UNDER OPTION C FOR SPOUSE REQUIRE THE SIGNATURE OF YOUR SPOUSE BEFORE A NOTARY, OR A RETIREMENT SERVICES OFFICER AND ONE OTHER WITNESS.  FAILURE TO MEET THIS REQUIREMENT WILL RESULT IN THE RETENTION OF FULL COVERAGE FOR YOUR SPOUSE AND CHILD(REN)" (emphasis in the original).

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.  Before the law was amended as noted below, 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.

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.

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.

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.  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 this requirement.

2.  The Board notes the applicant does not contend that he did not receive his 20-year letter in a timely manner and so was unable to elect, with his spouse's concurrence, RCSBP option A.  The Board therefore presumes that he received his 20-year letter, read it, and, as a senior commissioned officer, understood the instructions concerning the RCSBP, its costs, and the 90-day window in which to make his decision.  The Board concludes that there is no evidence of Government error or injustice in this case.

3.  The applicant will begin to receive retired pay in January 2019.  He will have a one-year window of opportunity to terminate (with his spouse's concurrence) his SBP participation beginning in January 2021.  The Reservist Portion of the RCSBP will still be deducted from his retired pay in order to pay for the protection his family received should he have died during the period prior to his reaching age 60. 

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

__rvo___  __jea___  __lmb___  DENY APPLICATION

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

INDEX

CASE ID	AR2003087867	
SUFFIX		
RECON		
DATE BOARDED	20030814	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.