IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150007587 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: 2 June 2016 DOCKET NUMBER: AR20150007587 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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: 2 June 2016 DOCKET NUMBER: AR20150007587 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 her record to show she declined participation in the Survivor Benefit Plan (SBP) and that she receive a refund of all SBP premiums taken from her retired pay. 2. The applicant states she failed to check a box to decline survivor benefits and she does not wish enrollment in this program. 3. The applicant provides two DD Forms 2656 (Data for Payment of Retired Personnel) and a notarized statement from her spouse. 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 21 October 1954 and she was married on 31 December 2002. 3. Her record contains a "Notification of Eligibility Retired Pay at Age 60 (Twenty Year Letter)," dated 10 March 2011. This letter informed her: a. Public Law 95-397, dated 30 September 1978, created the Reserve Component Survivor Benefit Plan (RCSBP), in which she was entitled to participate. RCSBP was her sole means of protecting her retired pay entitlement. "NOTE: Public Law 106-398, dated 30 October 2000, requires that upon receipt of this Letter, a qualified Reserve Component 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 (defer enrollment until age 60 when you apply for retired pay). (2) Option B (enroll and pay an annuity when YOU would have been age 60): (a) Enroll spouse or spouse and child(ren) at LESS THAN the maximum level. (b) Enroll child(ren) only (3) Option C (enroll and pay an annuity immediately upon your death) but: (a) Enroll spouse or spouse and child(ren) at LESS THAN the maximum level. (b) Enroll children only" b. She was further advised that she must notify this Command, using the DD Form 2656-5 (RCSBP) Election Certificate) or DD Form 1883 (SBP - Election Certificate, of her decision within 90 days of the date of this Letter. The letter stated "ANY WRITTEN CORRESPONDENCE (letter or forms) THAT INVOLVE A CHANGE FROM FULL COVERAGE UNDER OPTION C FOR SPOUSE REQUIRE THE SIGNATURE OF YOUR SPOUSE BEFORE A NOTARY, OR RETIREMENT SERVICES OFFICER AND ONE OTHER WITNESS. FAILURE TO MEET THIS REQUIREMENT WILL RESULT IN THE RETENTION OF FULL COVERAGE FOR YOUR SPOUSE AND CHILD(REN)." c. There is no evidence she elected to participate in the RCSBP at that time. 4. She completed a DD Form 2656 and signed this form on 1 November 2013. She placed an "X" in the first block of item 26g (Beneficiary Category(ies)) indicating she did not elect to participate in SBP. Her spouse signed the DD Form 2656 on 1 November 2013 in Section XII (SBP Spouse Concurrence) to indicate he concurred with the SBP decision made by his spouse. The notary witness notarized the document on 1 November 2013. 5. Orders issued by the U.S. Army Human Resources Command, Fort Knox, KY on 21 October 2014 show she was retired and placed on the Retired List in the rank of major effective 21 October 2014. 6. She reached age 60 on 21 October 2014. 7. She completed a second DD Form 2656 and signed this form on 20 April 2015. She placed an "X" in the first block of item 26g indicating she did not elect to participate in SBP. She also placed an "X" in the second block of item 26g indicating that she did not have eligible dependents under the plan. Her spouse signed the DD Form 2656 on 20 April 2015 under Section XII to indicate he concurred with the SBP decision made by his spouse. The notary witness notarized the document on 8 April 2015. 8. In a notarized statement, dated 21 April 2015, the applicant's spouse (a retired chief warrant officer five) concurred with her decision to decline the SBP. 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 evidence of record shows the applicant was issued a 20-Year Letter on 10 March 2011. This letter provided instructions regarding RCSBP enrollment. It appears she did not make an RCSBP selection and accordingly her husband became covered automatically. It does not appear that what the Army did in this case was wrong. 2. The applicant completed and signed a DD Form 2656 on 1 November 2013. She placed an "X" in the first block of DD Form 2656 indicating she declined participation in the SBP and her spouse concurred with her decision on 1 November 2013. This declination was ineffective due to her automatic enrollment in the RCSBP. 3. The applicant was retired on 21 October 2014 and she reached age 60 on the same date. 4. The applicant submitted a second DD Form 2656 on 20 April 2015. She elected to decline participation in the SBP and her spouse concurred with her decision on 20 April 2015. 5. The applicant may cancel or terminate the automatic SBP election from the 25th month through the 36th month - or the third year - of her retirement beginning in November 2016. 5. It appears the applicant and her spouse intended to decline participation in the SBP. The Board may consider amending her DD Form 2656 to show she declined, with spousal concurrence, to participate in the SBP in a timely manner and to refund her any paid premiums. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150007587 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007587 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2