PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            26 August 2003    
	DOCKET NUMBER:   AR2003088088

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Robert Duecaster		Member	
	Ms. Marla J. Troup		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, in effect, that his Reserve Component Survivor Benefit Plan (RCSBP) enrollment be terminated.

3.  The applicant states, in effect, that he has been drawing Department of Veterans Affairs (VA) disability compensation at the 100 percent rate since 1991.  He provides his spouse's concurrence with his request.

4.  The applicant’s military records show that he was born on 22 April 1936.  After having prior service, he enlisted in the Army National Guard in July 1961.  He received his notification of eligibility for retired pay at age 60 (his 20-year letter) and on 4 April 1983 completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) electing to participate in the RCSBP for spouse and children coverage, full base amount, option C.  

5.  By letter dated 15 January 1991, the VA informed the applicant that he was entitled to receive compensation at the 100 percent rate because of unemployability due to service-connected disability.  By letter dated 15 December 1993, the VA certified that the applicant was rated 100 percent permanent and totally disabled due to service-connected conditions.

6.  A Defense Finance and Accounting Service – Cleveland Center Form 1741/142 (SBP/RSFPP Premium Bill) dated 28 February 2003 indicates the applicant owed $2,909.86 in past due SBP premiums.

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.  If retired pay has been waived, the member is billed for the premiums.

8.  Public Law 96-402, enacted 9 October 1980 but effective 1 December 1980, established a withdrawal clause for members rated totally disabled by the VA.

9.  Title 10, U. S. Code, section 1452(g)(1) provides that a person who has elected to participate in the SBP and who is suffering from a service-connected disability rated by the VA as totally disabling and has suffered from such disability 
while so rated for a continuous period of 10 or more years (or, if so rated for a lesser period, has suffered from such disability while so rated for a continuous period of not less than 5 years from the date of last discharge) may discontinue participation in the Plan.  Discontinuance is effective on the first day of the first month following the month in which the request is received.  Participation may not be discontinued without the written consent of the beneficiary or beneficiaries of the person.

CONCLUSIONS:

1.  The evidence provided by the applicant shows that he was informed by the VA on 15 January 1991 that he was rated as 100 percent disabled.  Therefore, he was eligible to discontinue his participation in the RCSBP/SBP on 15 January 2001 in accordance with Public Law 96-402.  His spouse has provided her concurrence with his request to discontinue his enrollment in the SBP.

2.  It would be equitable to now correct the applicant's records to show he requested to withdraw from the SBP on 15 January 2001 and that his request was received by the appropriate office in sufficient time to make his termination effective 1 February 2001.

3.  If any of the applicant's SBP premium bill (of $2,909.86 as of February 2003) is due for costs prior to 1 February 2001, those costs are still a valid debt.

4.  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 requested to withdraw from the SBP on 15 January 2001 and that his request was received by the appropriate office in sufficient time to make his termination effective 1 February 2001.

2.  That after the above correction is made the applicant's retired pay account be audited and his past due SBP premiums be adjusted accordingly.

BOARD VOTE:  

__rjw___  __rd____  _mjt____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Raymond J. Wagner_
		        CHAIRPERSON

INDEX

CASE ID	AR2003088088	
SUFFIX		
RECON		
DATE BOARDED	20030826	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.