IN THE CASE OF: BOARD DATE: 25 February 2016 DOCKET NUMBER: AR20150005685 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 Reserve Component Survivor Benefit Plan (RCSBP) coverage and declination of future coverage. 2. The applicant states: a. She was automatically enrolled in the RCSBP during a time when she was married to Gary. She received her 20-year letter in December 2005 during her deployment. The following month she submitted an email requesting an extension to the RCSBP election decision. She was granted an extension, but she did not respond in time because she was unaware of the suspense date. Her RCSBP should be corrected to reflect she no longer has a spouse for the coverage. She divorced Gary in October 2012. She was completely unaware of the requirement to request a change within 1 year of her 2012 divorce. She was advised of this requirement when she spoke with the U.S. Army Human Resources Command (HRC) RCSBP representative. b. She was under the assumption that the RCSBP didn't begin charging the Soldier for coverage until the actual retirement date, not from the retirement eligibility date. If she is still assigned to the U.S. Army Reserve (USAR) then her family is covered under the Servicemembers Group Life Insurance. Why is she being double covered and charged? She wishes to stop the RCSBP at the soonest date. She intends to retire on 1 June 2015. She received her pre-retirement briefing on 21 March 2015 and learned of the maximum automatic election. 3. The applicant provides copies of the following: * 2001 Marriage License * 2012 Divorce Decree * two letters from and to the Army Review Boards Agency (ARBA) * 2015 Marriage Register * DD Form 2656 (Data for Payment of Retired Personnel) * Memorandum for Record (MFR) CONSIDERATION OF EVIDENCE: 1. The applicant was born on 1 January 1965. She was appointed in the Texas Army National Guard on 29 December 1993, with prior enlisted service. 2. She and Gary were married on 12 January 2001. 3. She entered active duty in support of Operation Iraqi Freedom on 20 June 2005. 4. On 29 September 2005, she was issued a Notification of Eligibility for Retired Pay at Age 60 letter in which she was informed of the following: a. She had completed the required years of service and she would be eligible for retired pay upon application at age 60. b. Public Law 106-398, dated 30 Oct 2000, requires that upon receipt of a 20-year letter, a qualified RC Soldier who is married will automatically be enrolled in the RCSBP under Option C (Spouse and Child(ren) coverage based on Full Retired Pay) unless their spouse concurs, in writing, with one of the other available 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 20-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. 5. On 6 January 2006, the Supervisor, Retirements and Annuities, HRC, in response to the applicant's faxed letter advising them of her deployment, advised her that the suspense date for her reply concerning enrollment on the RCSBP was suspended. The suspension would be removed upon the expiration of her mobilization orders (21 August 2006). At that time she had 90 days (until 21 November 2006) to inform HRC of her RCSBP enrollment decision. The letter also advised her that during her period of mobilization she was automatically covered under the active SBP which meant that in the event of her death while on active duty, SBP would provide an annuity based on her retired pay at the time of death. 6. She was released from active duty on 10 September 2006. 7. There is no indication she completed a DD Form 2656-5 (RCSBP Election Form) or a DD Form 1883 (SBP Election Certificate) on or before 21 November 2006. 8. She and Gary were divorced on 5 October 2012. Their divorce decree did not indicate he was awarded RCSBP. 9. Orders Number 15-097-00022, issued by Headquarters, 63rd Regional Support Command on 7 April 2015, assigned her to the Retired Reserve effective 1 June 2015. 10. She and Robert were married on 10 May 2015. 11. On 19 June 2015, a staff member of HRC advised the Board that their files only contained the deferral letter which was approved in 2006. No other election was made by the applicant after that. 12. On 30 August 2015, she executed and signed a DD Form 2656. She indicated on the form that she was married and had no dependent children. She elected not to participate in the SBP. Her signature was witnessed and notarized on the same date. Her spouse, Robert, concurred with the election and his signature was witnessed and notarized on 31 August 2015. 13. On 1 September 2015, her former spouse, Gary, signed a notarized statement in which he acknowledged that he concurred with the applicant's SBP election. He also stated that he had received information that explained the options available and the effects of those options. The divorce decree between himself and the applicant did not award him any coverage under the SBP. 14. She will reach age 60 on 1 January 2025. 15. 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; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP. 16. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from the 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. 17. Public Law 106-398, enacted 30 October 2000, requires that upon receipt of the 20-year letter, a qualified RC member who is married, be automatically enrolled in the RCSBP under option C (spouse and children coverage), based on the full amount of retired pay, 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) 18. Public Law 106-398 further provides that 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. 19. Title 10, U.S. Code (USC), Section 1448a(6) states as a general rule a person who is a participant in the SBP and is providing coverage under the plan for a spouse (or a spouse and child) and who remarries may elect not to provide coverage under the SBP for the person's spouse. If such an election is made, reductions in the retired pay of that person under section 1452 of this title shall not be made. DISCUSSION AND CONCLUSIONS: 1. By law and regulation, RC Soldiers who complete 20 or more years of qualifying service are issued a 20-year letter that informs them of their retirement eligibility and offers them the opportunity to enroll in the RCSBP. The law requires a Soldier to make an election and return the enrollment form within 90 days of receipt. The law also stipulates that 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 the spouse's concurrence is provided for a different option. Her 20-year letter informed her of the law’s requirements. 2. There is no evidence of record and she did not provide sufficient evidence showing she made an election on or before her approved deferral suspense date of 21 November 2006 despite having requested, receiving an extension, and having an awareness of the extension. As such, she was automatically enrolled in Option C (immediate coverage). 3. However, the applicant does have the option to elect out of the plan under Title 10, USC, section 1448 upon her remarriage and is currently within her 1-year window. Her current application contains the necessary spousal concurrence to no spouse coverage. Accordingly, and in order to prevent any confusion that might lead to closure of the window, it is appropriate to grant relief by showing the applicant opted out of RCSBP/SBP spouse coverage for her post-retirement spouse. 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 elected not to participate in the RCSBP/SBP on 30 August 2015 and her DD Form 2656 was received and timely processed by DFAS. _______ _ 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) AR20150005685 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005685 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1