IN THE CASE OF: BOARD DATE: 22 December 2016 DOCKET NUMBER: AR20150012845 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 22 December 2016 DOCKET NUMBER: AR20150012845 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * showing she had no dependents and declined to elect to participate in the Survivor Benefit Plan (SBP) in December 2011 * refunding all SBP premiums deducted from her retired pay as a result of this correction 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. ___________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: 22 December 2016 DOCKET NUMBER: AR20150012845 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 Survivor Benefit Plan (SBP) coverage, a refund of all SBP payments, and issuance of a DD Form 2656 (Data for Payment of Retired Personnel) * a personal appearance before the Board 2. The applicant states she was erroneously charged for SBP coverage when she was not married. She should have been issued a DD Form 2656. Because she was not issued a DD Form 2656 (for the purpose of opting out of SBP coverage), she was unaware that she was paying SBP premiums although she was not married and is still not married. She recently discovered the allotments were being deducted from her pay for SBP coverage after reviewing her "My Pay" that was previously not accessible to her. She was charged $3,000.00 for the coverage, which is an error. The letter from the U.S. Army Installation Management Agency lists an incorrect current address for her. She was also advised that the U.S. Army Human Resources Command (HRC) was responsible for issuing her a DD Form 2656. 3. The applicant provides: * Marriage License * Decree of Divorce, Amended Decree of Divorce, Settlement Stipulation, and Divorce Order * Orders Number C10-397663 and 309-0020 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * letter from the U.S. Army Installation Management Agency * DD Form 2656 CONSIDERATION OF EVIDENCE: 1. The applicant was born on XX December 1951. She enlisted in the U.S. Army Reserve (USAR) on 26 June 1971 and was discharged on 8 July 1981. She was appointed in the USAR on 9 July 1981. 2. She married Douglas on 23 October 1981. 3. On 21 May 1997, she was issued a Notification of Eligibility for Retired Pay at Age 60 letter in which she was informed that she was entitled to participate in the Reserve Component SBP (RCSBP) established by Public Law 95-397. By law, she had only 90 calendar days from the date of receipt of the letter to submit her DD Form 1883 (SBP Election Certificate). If she did not submit her election within 90 calendar days, she would not be entitled to SBP coverage until she applied for retired pay at age 60. 4. Her record is void of evidence she completed a DD Form 1883 within the required 90 calendar days. In effect, she deferred her election to age 60. 5. She and Douglas were divorced on 23 June 1998. Their decree of divorce filed with the Davis County District Court did not stipulate award of RCSBP to him. On 30 August 1999, the court issued an amended decree of divorce after an agreement between the two parties was reached during mediation. 6. In a Settlement Stipulation, dated 14 December 2005, she and Douglas agreed to give up any current and future claims they could have or that could arise in regards to the other party's retirement benefits. The court approved the stipulation on 12 January 2006. 7. She was honorably released from active duty on 20 October 2007 and was transferred a Reserve unit. Her Chronological Statement of Retirement Points dated 2 March 2011 shows she was transferred to the USAR (Retired Reserve) on 1 February 2008. 8. Meanwhile, Orders Number A-01-801279, issued by HRC on 18 January 2008, recalled her to active duty from retired status with a report date of 31 January 2008. She entered on active duty on 31 January 2008. 9. She reached age 60 on XX December 2011. 10. In a Request for Retention Beyond Mandatory Removal Date (MRD) memorandum, dated 14 June 2012, an extension of her MRD was authorized for completion of the Integrated Disability Evaluation System processing. A Physical Evaluation Board (PEB), convened on 29 May 2013, found her physically fit. The PEB was approved on 27 June 2013. She was honorably released from active duty on 9 November 2013 and was transferred to the USAR (Retired Reserve). 11. Orders Number C10-397663, issued by HRC on 31 October 2013, directed her retirement and placement on the retired list on 10 November 2013. The orders instructed her to contact her support Retirement Services Officer for a retirement briefing. 12. Her record is void of any evidence she completed a DD Form 2656-5 (RCSBP Election Form) or a DD Form 1883 on or before 9 November 2013. 13. She provided: a. A letter, dated 11 December 2013, from the Chief, Transition Chief, U.S. Army Installation Management Agency, wherein it was requested the applicant be issued a DD Form 215 (Correction to DD Form 214) with the entry "Soldier is Eligible for Transitional Health Care under Title 10, U.S. Code, Section 1145, until 8 May 2014." b. A DD Form 2656 she completed and signed on 28 July 2015. She indicated on the form that she was single and had no dependent children. She elected not to participate in the SBP. 14. On 13 December 2016, an Army Retirement Services Office staff member advised the Board that a review of their system showed the applicant was automatically enrolled in the SBP for spouse coverage based on her retirement in accordance with Title 10, U.S. Code, section 12731. He noted that there was no evidence HRC issued the applicant a DD Form 2656 or DD Form 2656-8 (SBP- Automatic Coverage Fact Sheet). He also noted that the Defense Finance and Accounting Service would have changed her election once it was made aware that she had no eligible SBP dependent. REFERENCES: 1. 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 were 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. 2. 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. 3. Title 10, U.S. Code, section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement. 4. Army Regulation 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires. DISCUSSION: 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. Her 1997 20-year letter informed her of the law’s requirements. Her record is void of evidence she made an election on or before her suspense date. 2. The evidence shows she and her spouse married on 23 October 1981 and were divorced in August 1999. Their divorce agreement did not obligate her to provide former spouse SBP. 3. She retired on 9 November 2013. Because she was single with no dependents on that date, her SBP coverage should not have defaulted to spouse coverage. The only way she would have any SBP coverage at all is if she affirmatively chose coverage for a person with a natural insurable interest. 4. Although Government error was likely due to her failure to report her divorce, the fact remains that there was no basis for automatic enrollment. Her records may be corrected to show she had no dependents and she was not enrolled in SBP. 5. With respect to her request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 6. DD Form 2656 is completed by Soldiers in advance of becoming eligible for retired pay. She has completed the form and is receiving retired pay. The portion of her request pertaining to this form has been overcome by events and does not require a decision by this Board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012845 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012845 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2