BOARD DATE: 5 January 2016 DOCKET NUMBER: AR20150005850 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 records to show he elected not to participate in the Survivor Benefit Program (SBP). 2. The applicant states due to his spouse's employment she was unable to accompany him to his retirement processing and was unable to sign the DD Form 2656 (Data for Payment of Retired Personnel) SBP portion acknowledging that he was not electing the SBP. Fort Lewis was supposed to mail his spouse the form to sign and notarize but failed to do so. Despite the nonelection of SBP clearly marked on the form, SBP is being withheld from his retirement pay and he requests the error be corrected. A clerical error caused the form to be entered incorrectly into the pay system. 3. The applicant provides DD Form 2656, orders, a notarized statement from his spouse, and a marriage certificate. CONSIDERATION OF EVIDENCE: 1. The applicant and his spouse, Susanne, were married on 6 April 1992. He was appointed as a second lieutenant in the Oregon Army National Guard (ORARNG) on 21 August 1992. He served continuously in the ORARNG in both an active duty and inactive status. On 6 August 2002, he attained the rank/grade of major/O-4. 2. On 17 October 2007, the ORARNG issued him a Twenty-Year Letter. This memorandum notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60. The memorandum also notified him that he was entitled to participate in the Reserve Component SBP (RCSBP), he had 90 days from receipt of the letter to make his election, failure to meet the requirement would result in full coverage for his spouse and children, and a DD Form 2656-5 (RCSBP Election Certificate) was enclosed. 3. His records contain a DD Form 2656-5, dated 31 October 2007, wherein he indicated he was married at the time with three dependent children. This form shows he elected "spouse and children" full coverage under Option C (Immediate Coverage) and signed the form on that date. 4. He continued to serve in the ORARNG in both an active duty and inactive status. He was assigned to ARNG 41st Infantry Brigade Combat Team (BCT), Clackamas, OR. 5. On 5 October 2011, he entered active duty as a member of his ARNG unit. On 17 February 2012, he attained the rank/grade of colonel (COL)/O-6. 6. The applicant provides: a. Orders 265-016, dated 22 September 2014, issued by the Joint Force Headquarters, ORARNG, assigned him to the U.S. Army Transition Center, Joint Base Lewis-McChord (JBLM), effective 28 February 2015 and released him from active duty on that date and placed him on the Retired List on 1 March 2015. b. A DD Form 2656 wherein he indicated he was married at the time with three dependent children. This form shows he elected not to participate in SBP. The applicant signed this form on 29 January 2015 and his signature was witnessed by an individual with the Retirement Services Office (RSO), JBLM. This form also shows his spouse, Susanne, signed this form on 24 March 2015 and her signature was notarized on that date. c. Section XII (SBP Spouse Concurrence) of the DD Form 2656 states, in part "Required when member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage." 7. He was honorably retired from active duty and the ORARNG on 28 February 2015 in the rank of COL and he was placed on the Retired List on 1 March 2015. 8. The applicant provides a notarized statement from his spouse, dated 1 October 2015, wherein she stated she understood what the SBP was about, understood cancellation of the SBP might not be in her best interest, and concurred with the applicant’s request to not to elect SBP. 9. 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. 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). 10. Title 10, section 1447(3) defines the RC annuity as, in effect, an annuity provided by virtue of being eligible for RC retired pay but for the fact they are under 60 years of age. It states, in part, once a Reservist retires under an active duty retirement law, they are no longer eligible for RC retired pay or RCSBP. When the retirement is under an active retirement law, the election is no longer based on the RCSBP election and they must make a new SBP election. DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms that upon receipt of his Twenty-Year Letter the applicant elected spouse and children coverage under Option C, full base amount, on 31 October 2007. However, as he retired on 28 February 2015 under active duty retirement laws his previous election was no longer valid and he was required to make a new SBP election. 2. In conjunction with his retirement he completed a DD Form 2656 on 29 January 2015 and elected not to participate in the SBP. His spouse concurred with his election and her signature was notarized on 24 March 2015. However, as the date of her signature was after 1 March 2015, the date he was placed on the retired list, his election was processed as spouse coverage. It is reasonable to presume that had he been aware of the requirement to have his spouse sign the DD Form 2656 prior to his retirement date he would have done so. 3. The applicant has provided a properly notarized statement from his spouse, dated 1 October 2015, wherein she verified she concurred with his election to decline SBP enrollment as of the date he retired. As a matter of equity, it would be appropriate to correct his records to show he elected to decline SBP coverage at the time of his retirement and his spouse concurred with his election at that time. 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 the applicant properly elected to decline SBP coverage at the time he was retired and his spouse properly concurred with his election * paying him all monies already deducted from his retired pay for SBP coverage _______ _ 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) AR20150005850 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005850 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1