IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20160012796 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20160012796 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20160012796 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 correction of his record to show he declined enrollment in the Reserve Component Survivor Benefit Plan (RCSBP). 2. The applicant states: a. The U.S. Army Human Resources Command (HRC) did not save and upload his DD Form 2656 (Data for Payment of Retired Personnel) into his interactive Personnel Electronic Records Management System (iPERMS) file when he submitted it in October 2007. Therefore, he and his wife completed another DD Form 2656 per HRC's instruction in May 2016. b. The cost of the SBP will cause an undue burden on his retirement finances. In his financial plan, he maintains life insurance at a lesser expense that will provide a larger annuity payment than provided by the RCSBP. 3. The applicant provides: * Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), issued by HRC, St. Louis, MO, on 16 August 2007 * Retired Pay Application Checklist * Orders HR-5294-00020, issued by HRC, Fort Knox, KY, on 21 October 2015 * DD Form 108 (Application for Retired Pay Benefits), dated 14 April 2016 * Standard Form 1199A (Direct Deposit Sign-up Form), dated 10 May 2016 * DD Form 2656, dated 12 May 2016 * DA Form 5016 (Chronological Statement of Retirement Points) * Orders C-06-608507, issued by HRC, Fort Knox, KY, dated 23 June 2016, placing him on the Retired Reserve List 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 9 October 1958. He was appointed as a Reserve commissioned officer of the Army on 8 May 1987. He was married on 31 August 1995. 3. He was issued his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 16 August 2007, wherein HRC informed him: a. He had completed the required years of service and would be eligible for retired pay upon application at age 60. b. Public Law 95-397, dated 30 September 1978, created the RCSBP, in which he was entitled to participate. RCSBP was his sole means of protecting his retired pay entitlement. NOTE: Public Law 106-398, dated 30 October 2000, requires that upon receipt of this Letter, a qualified RC member, who is married, will automatically be enrolled in the RCSBP under Option C, Spouse and Child(ren) coverage based on Full Retired Pay, UNLESS spouse concurrence is provided to allow one of the following elections: (1) Option A, in which the Soldier defers enrollment to age 60 when he/she applies for retired pay; (2) Option B, in which the Soldier enrolls in the RCSBP; however, in the event of his/her death, an annuity would not be paid until the date he/she would have turned age 60. The Soldier had the option to enroll their spouse or spouse and child(ren) at less than the maximum level, or to enroll for "children only" coverage; or (3) Option C, in which the Soldier enrolls in the RCSBP, and in the event of his/her death, an annuity would be paid immediately to the indicated surviving family members. The Soldier had the option to enroll their spouse or spouse and child(ren) at less than the maximum level, or to enroll for "children only" coverage. c. Soldiers have 90 days from receipt of the Twenty Year Letter to make their election. If they fail to return the form by the end of the 90-day period, by law they are automatically enrolled in Option C. 4. There is no indication the applicant completed a DD Form 2656-5 (RCSBP Election Form) within 90 days of receiving his Twenty Year Letter. 5. On 12 May 2016, his spouse, Sharon, signed a DD Form 2656, wherein she concurred with her husband's decision not to participate in the SBP. The form was witnessed, signed, and notarized. 6. The applicant has been assigned to the Retired Reserve effective 1 October 2016, and he will be eligible to receive retired pay on 9 October 2018. 7. The applicant provides a Retired Pay Application Checklist, wherein he annotated that he declined RCSBP in 2007. REFERENCES: 1. Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only, if applicable) coverage. 2. 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. 3. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than the maximum spouse coverage. 4. 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. 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: 1. The applicant was issued a Twenty Year Letter on 16 August 2007. By law and regulation, a Soldier in receipt of a Twenty Year Letter is required to make an election and return the enrollment form within 90 days of receipt. A qualified RC member who is married will automatically be enrolled in the RCSBP under Option C (spouse and children coverage) based on the full amount, unless spousal concurrence is provided for a different option. 2. The applicant contends he declined participation in the RCSBP in October 2007; however, the DD Form 2656 was not saved into his iPERMS file. There is no evidence that corroborates his statement. Absent an election, he was automatically enrolled in Option C (immediate coverage). This means he does not have the option to make another election at age 60. 3. Nevertheless, retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay starts to withdraw from the SBP. The spouse's concurrence is required. No premiums will be refunded to those who opt to disenroll. The request may be submitted directly to the Defense Finance and Accounting Service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012796 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012796 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2