IN THE CASE OF: BOARD DATE: 19 January 2016 DOCKET NUMBER: AR20150005901 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 termination of her participation in the Reserve Component Survivor Benefit Plan (RCSBP) and reimbursement of all premiums collected. 2. The applicant states: a. She never elected to participate in the RCSBP. b. Her Retiree Account Statement (RAS) shows that $224.96 would be deducted from her retirement pay for SBP coverage. Her first reserve retirement pay will begin on 1 April 2015. c. Her 20-year letter states that if she didn't fill out a DD Form 1883 (Survivor Benefit Plan Election Certificate) within 90 calendar days of the date of the letter, she would not be entitled to SBP coverage until she applied for retired pay at age 60. d. Her husband is an active duty Army retiree and they never planned on having SBP coverage for him. Therefore, she never filled out the DD Form 1883 because she never wanted the coverage for him. e. The retirement documents she submitted in February 2014 show that her husband declined SBP coverage. 3. The applicant provides copied of her – * DD From 214 (Certificate of Release or Discharge from Active Duty) ending 22 May 1986 * DD Form 214 ending 31 August 1992 * 20-Year letter, dated 28 March 2001 * Chronological Statement of Retirement Points, dated 16 January 2014 * DD Form 2656 (Data for Payment of Retired Personnel), dated 7 February 2014 * Direct Deposit Sign-Up Form * Retiree Account Statement effective 18 March 2015 * Defense Finance and Accounting Services (DFAS) email note, dated 19 March 2015 * Retiree Account Statement effective 23 March 2015 * DFAS email note, dated 25 March 2015 CONSIDERATION OF EVIDENCE: 1. The applicant's records show she was born on 1 March 1955. 2. A U. S. Army Reserve Personnel Command memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 28 March 2001, notified the applicant that: a. She had completed the required years of qualifying reserve service and was eligible for retired pay, on application, at age 60. b. By law she had 90 calendar days to submit her DD Form 1883 showing her RCSBP election. If she did not submit the RCSBP election within 90 days she would not be entitled to survivor benefit coverage until she applied for retired pay at age 60. A DD Form 1883 was enclosed with detailed information about the RCSBP. 3. She was retired as a chief warrant officer three (CW3) effective 1 March 2015. 4. On 7 February 2014, the applicant completed a DD Form 2656 indicating: a. She was married with no dependent children. b. She also placed an "X" in item 26g showing she elected not to participate in the SBP and that she did have an eligible dependent under the plan. c. She signed this form; a witness also placed her name and authenticated this form with her signature. d. The applicant's spouse signed the form in item 32 indicating he concurred with the SBP election made by the applicant. Notary information is shown on the form. 5. On 26 February 2015, the U.S. Army Human Resources Command published Orders C02-591735 placing her on the Retired List in her retired rank of CW3 effective 1 March 2015, her 60th birthday. 6. Her 18 March 2014 RAS includes the comment that no SBP election was reflected on her account. 7. A 19 March 2014 DFAS email note shows her account "as declined for SBP." 8. Her 23 March 2014 RAS shows she was enrolled in the RCSBP/SBP with spouse only coverage at a cost of $224.96. 9. In a 25 March 2014 DFAS email the applicant was informed that the transaction to remove the SBP was in error. She was further informed that due to the RCSBP law, if DFAS did not receive an RCSBP election and her 20-year letter was dated 1 January 2001 or after the applicant would be automatically covered enrolled in the RCSBP. The coverage was effective 90 days after the date of her 20-year letter and covers all eligible beneficiaries. 10. The DD Form 1883 requires the applicant's spouse's concurrence and signature if the election is Option A (decline to make an election until age 60). 11. Public Law 106-398, dated 30 October 2000, requires that upon receipt of the 20-year letter, a qualified Reserve Component member who is married will automatically be enrolled in the RCSBP under option C (spouse and children coverage) based on the full amount unless the spouse's concurrence is provided to allow one of the following elections: * option A (defer enrollment to age 60) * option B (enroll and pay annuity when member would have been age 60 for spouse or spouse and children at less than maximum amount or enroll children only) * option C (enroll and pay an annuity immediately upon death, but enroll spouse or spouse and children at less than maximum amount or enroll children only) 12. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C. The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-year letter. DISCUSSION AND CONCLUSIONS: 1. The applicant did not intend to participate on the SBP so she did not fill out the DD Form 1883 that was included in her 20-year letter. 2. When she applied for retirement she submitted a DD Form 2656 showing she elected not to participate in the SBP and her spouse concurred with her election by his signature. 3. While the applicant should have submitted the DD Form 1883 included with her 20-year letter showing her election to not participate in the RCSBP and her spouse's concurrence, it is clear it was the applicant's intention not to participate in the SBP and her spouse concurred with her decision. Further, and most importantly, the letter she received in March 2001 did not accurately explain the law had changed or properly advise her of the consequences of not responding. This constitutes Government error. 4. As a matter of equity, her records should be corrected to show she elected not to participate in the SBP, her spouse concurred, and DFAS timely processed her request. BOARD VOTE: ____x___ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she properly declined to participate in the SBP, with her spouse’s timely and notarized concurrence, and that any SBP premiums deducted from her pay be refunded to her as a result of this correction. _______ _ __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) AR20150001913 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005901 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1