MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 August 2002
	DOCKET NUMBER:   AR2002075437

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Irene N. Wheelwright		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas Lanyi		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:  In effect, that his records be corrected to show he terminated his Reserve Component Survivor Benefit Plan (RCSBP) coverage and he be refunded all premiums.

APPLICANT STATES:  That he enrolled in the RCSBP in February 1981 and then divorced in September 1981.  His former spouse died in May 1995.  It never occurred to him to correct the SBP election certificate.  He did not realize the error until his retired pay started in August 2001.  He provides the Survivor Benefit Plan Election Certificate, DD Form 1883; divorce decree; death certificate; Data for Payment of Retired Personnel, DD Form 2656; two letters addressed to the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) dated 30 October 2001 and 13 March 2002; and a DFAS-CL letter dated 16 April 2002 as supporting evidence.

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

He was born on 21 July 1941.  After having had prior enlisted service, he was commissioned in the U. S. Army Reserve in September 1967.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 19 November 1980. On 10 January 1981, he completed a DD Form 1883 and indicated in section II, Marital, Dependency, and Election Status, that he elected spouse and children RCSBP coverage, reduced base amount, option C.  This section clearly states, “IMPORTANT:  The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully.”  In section III, Family Information, he indicated that he was married to A___.  

The applicant and A___ divorced on 1 September 1981.  He married E___ on   17 November 1984.

The applicant was transferred to the Retired Reserve effective 19 August 1994 in the rank of lieutenant colonel.

The applicant’s former spouse died on 31 May 1995.  

On 21 February 2001, the applicant completed a DD Form 2656.  In section IX, SBP Election, he indicated that he elected not to participate in the SBP.  The instructions on this form inform members who elected RCSBP not to complete this section.

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 (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.  SBP elections are made by category, not by name.

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.  As noted on the DD Form 1883, the applicant’s election to participate in the RCSBP was an irrevocable decision.  His election rolled over into the SBP upon his reaching age 60.  No changes could be made upon his application for retired pay.  His spouse, E___, received the protection afforded by his 1981 election to participate in the RCSBP.  Had he died prior to reaching age 60, his spouse would have received the SBP annuity.

3.  The applicant will have a one-year opportunity, beginning on 1 August 2003, to disenroll from the SBP.  His spouse’s concurrence will be required and no premiums will be refunded.

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

__INW __  __AAO __  _ _ TL_  _  DENY APPLICATION

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

INDEX

CASE ID	AR2002075437	
SUFFIX		
RECON		
DATE BOARDED	2002/08/27	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.03	
2.		
3.		
4.		
5.		
6.