RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2007 DOCKET NUMBER: AR20060013242 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. x The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his records be corrected to show that he elected not to participate in the Reserve Component Survivor Benefit Program (RCSBP) and that any monies collected for that program be returned to him. 2. The applicant states, in effect, that he elected not to participate in the RCSBP when he applied for Retired Pay benefits at age 60 on 12 August 2004. However, he has since received notification that he elected to participate in the RCSBP on 19 March 1990 and is now being charged premiums for enrollment in the RCSBP. 3. The applicant provides a 3-page summary of his account from the Retired Pay Department of the Defense Finance and Accounting Service – Cleveland (DFAS – Cleveland) and a copy of his DD Form 2656 (Data for Payment of Retired Personnel). CONSIDERATION OF EVIDENCE: 1. He was born on 6 August 1946 and initially enlisted in the Wisconsin Army National Guard (WIARNG) on 11 September 1963. He served in the WIARNG until 19 May 1965. He enlisted in the United States Navy on 20 May 1965 and served until he was honorably released from active duty on 19 March 1969, when he was transferred to the Naval Reserve. 2. He enlisted in the United States Army Reserve (USAR) on 11 June 1977 and remained active in the USAR through a series of continuous reenlistments. He was promoted to the rank of first sergeant on 7 February 1987. 3. On 23 December 1989, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) notifying him that he had completed the required years of service to be eligible for Retired Pay on application at age 60 (6 August 2006). The notification also informed him that he had 90 days to submit his RC-SBP Election Certificate (DD Form 1883). He was also informed that if he failed to submit a DD Form 1883 (which was provided at the time), he would be unable to make an election until he applied for retired pay at age 60. 4. The applicant was promoted to the rank of command sergeant major on 2 January 1991 and on 1 March 1995, he was voluntarily transferred to the Retired List. 5. The applicant submitted his application for Retired Pay on 12 August 2004 and at that time he elected not to participate in the RCSBP. 6. On 24 August 2006, the DFAS - Cleveland Retired Pay Department dispatched a summary of his Retired Pay Account in which it showed that he was eligible to receive Retired Pay benefits effective 6 August 2006, he elected enrollment in the RCSBP on 19 March 1990 and that charges for his enrollment in RCSBP became effective 1 September 2006. 7. A review of the available records fails to show if and what RCSBP election he made on 19 March 1990, which would have been within the 90-day window he was given when he received his 20-year letter. 8. A review of a blank DD Form 1883 shows immediately below the applicant’s election is a notification to the individual making the election that the decision made with respect to participation in the SBP is a permanent irrevocable decision. 9. Public Law 95-397, the Reserve Component SBP, 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. If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay (costs for option C being the more expensive). 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. 10. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contention that he opted not to participate in the RCSBP on 12 August 2004 has been noted; however, the applicant has failed to show through the evidence submitted or the evidence of record that he did not make his election to participate in the RCSBP on 19 March 1990, within the 90-day window after her received his 20-year letter or that he was misinformed of his rights regarding his SBP election. 2. Inasmuch as 19 March 1990 was within the 90-day window of his 20-year letter, it must be presumed that he made an election at that time as indicated by DFAS – Cleveland. Inasmuch as the election was irrevocable at the time he made the initial election, there appears to be no basis to grant his request. 3. However, since the applicant made his election, there have been provisions passed that allow for subsequent disenrollment from the RCSBP and he has the option of terminating his SBP participation beginning on the second anniversary of the date on which his retired pay started, provided his wife concurs. 4. 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. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x___ __x__ ___x _ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______x_______ CHAIRPERSON INDEX CASE ID AR20060013242 SUFFIX RECON YYYYMMDD DATE BOARDED 20070419 TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION (DENY) REVIEW AUTHORITY ISSUES 1.137.0400 350/CHG ELECT 2. 3. 4. 5. 6.