MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           28 October 2003    
		DOCKET NUMBER:  AR2003090331

	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 J. Wagner		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Marla J. Troup		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 retirement points/pay be adjusted.  He also requests, in effect, that his records be corrected to show he enrolled only in the standard SBP and that he be refunded the excess premiums he paid.  

In June 2003, the U. S. Army Reserve Personnel Command (AR-PERSCOM) adjusted the applicant's retirement points and notified the Defense Finance and Accounting Service of the change.  This portion of his request will not be addressed further.

APPLICANT STATES:  That he is being charged for both the SBP and the Reserve Component SBP (RCSBP).  When he received his notification of eligibility for retired pay (his 20-year letter), he was told he had to sign up for the RCSBP if his wife was to receive benefits upon his death.  He was again told to sign up for the SBP at the time he was transferred to the Retired Reserve.

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

He was born on 24 November 1942.  After having had prior service in the Army National Guard, he enlisted in the U. S. Army Reserve on 6 August 1984.  He was ordered to active duty in an Active Guard/Reserve (AGR) status on 20 May 1985.

The applicant's 20-year letter is dated 23 June 1990.  Records at AR-PERSCOM indicate he failed to make an RCSBP election at that time.

On 12 January 1993, during an Open Enrollment period, the applicant elected to participate in the RCSBP for spouse only coverage, full base amount, option C.  

The applicant was released from active duty and assigned to the U. S. Army Reserve Control Group (Reinforcement) on 16 November 2002 upon the completion of his required active service.  He was placed on the retired list on    24 November 2002 upon attaining age 60.

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.  Once a member elects either option 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 the standard 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.

In the processing of this case, an advisory opinion was obtained from the Retirements and Annuities Section, AR-PERSCOM.  That office noted that the applicant failed to make an RCSBP election within 90 days of receiving his      20-year letter but did enroll during the next available Open Enrollment period.  He was cautioned that election of option B or C was irrevocable.  He was obligated to pay his premiums for the first 24 months on the SBP.  He can then withdraw from SBP coverage during the 24th through 36th months.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

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 evidence of record shows the applicant enrolled in the RCSBP during an Open Enrollment period for spouse only coverage, full base amount, option C.

3.  There is no evidence to show the applicant enrolled in the standard SBP upon becoming eligible for retired pay at age 60.  However, even if he had, that election would have been void.  Option B and C RCSBP 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 the standard SBP coverage.

4.  The applicant might be confused about enrolling in the RCSBP and then again in the standard SBP because, if RCSBP Option B or C is elected, a Reservist Portion cost is added to the basic cost of the SBP to cover the additional benefit and assured protection his wife had if he had died prior to age 60.

5.  The applicant will have a one-year opportunity to disenroll completely from the SBP beginning in December 2004.  However, he should understand that if he disenrolls his wife will no longer be eligible for any annuity if he dies.  In addition, if he disenrolls the Reservist Portion cost would still be deducted from his retired pay.  Again, that would be to cover the protection his wife had if he had died prior to age 60.

6.  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

__rjw___  __lds___  __mjt___  DENY APPLICATION

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

INDEX

CASE ID	AR2003090331	
SUFFIX		
RECON		
DATE BOARDED	20031028	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.