IN THE CASE OF: BOARD DATE: 27 March 2014 DOCKET NUMBER: AR20130012720 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the payments being deducted from his retired pay for the Reserve Component Survivor Benefit Plan (RCSBP) be stopped and he be reimbursed for the monies he has overpaid. 2. The applicant states he turned 60 years of age on 4 February 2010, almost 6 months after his retirement date of 12 August 2009. He is now 63 years of age and payments for the RCSBP continue to be taken out of his retired pay. He believes these payments should have ceased upon his 60th birthday per the written agreement. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was born on 4 February 1950. Having had prior Reserve service, he enlisted in the California Army National Guard (CAARNG) on 12 August 1998. 3. On 16 September 2002, by memorandum, the Adjutant General's Office, Sacramento, CA, issued him a memorandum, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). This memorandum notified the applicant that he had completed the required years of service and he would be eligible for retired pay upon application at age 60. 4. His records contain a DD Form 1883 (SBP Election Certificate), dated 10 November 2002, wherein it shows that at that time he was married and had no dependent children. He elected RCSBP spouse only coverage, Option C (immediate coverage), based on the full amount of retired pay. 5. He was honorably separated from the CAARNG on 30 August 2009 and he was transferred to the Retired Reserve. 6. He was placed on the Retired List on 4 February 2010, the date he turned 60 years of age. 7. In an email, dated 19 July 2013, a Defense Finance and Accounting Service official verified the applicant has spouse only SBP coverage. 8. 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. 9. 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 (emphasis added). DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms the applicant elected RCSBP spouse only coverage, Option C, based on the full amount of his retired pay. As he elected Option C, he was immediately covered under the RCSBP and his spouse would have received an annuity if he had died before reaching age 60. 2. Premiums for SBP coverage start when the retired member begins collecting retired pay, which for a Reservist begins when the member turns 60 years of age. In addition, as he elected RCSBP Option C, there is an additional cost added to the SBP deduction to cover the benefit of immediate coverage from the date he made the election to the date he turned 60 years of age. 3. In view of the foregoing, he is not entitled to the requested relief. 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 I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20130012720 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130012720 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1