BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20150018655 BOARD VOTE: __x______ __x______ _x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20150018655 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 he properly declined the Reserve Component Survivor Benefit Plan (RCSBP) election for spouse coverage and his election was received and processed in a timely manner by the appropriate DFAS office on 1 May 2001. Such relief should result in the repayment of any previously paid RCSBP or SBP premiums. __________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. BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20150018655 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 Reserve Component Survivor Benefit Plan (RCSBP). 2. The applicant states, in effect: a. He just started receiving his retired pay after over 27 years of active and U.S. Army Reserve (USAR) service. On his first Retired Account Statement (RAS), he noticed an RCSBP payment was deducted; however, he specifically declined the benefit in accordance with the instructions contained in his [Notification of Eligibility for Retired Pay at Age 60] Twenty Year Letter. b. He received his Twenty Year Letter sometime on 2 February 2001. Paragraph 4 of the letter states he is eligible to participate in the RCSBP, and if he did not submit his election within 90 days, he would not be entitled to survivor benefit coverage. c. He and his wife discussed the options and they decided to decline the RCSBP by following the information on the Twenty Year Letter; he did not respond to within 90 days of the letter. Instead, they choose to purchase a life insurance policy. d. In March 2015, he submitted his DD Form 2656 (Data for Payment of Retired Personnel), where once again he and his spouse decided to decline the SBP; his spouse approved of the choice with her signature. On 30 October 2015, he received his first RAS, which showed RCSBP and SBP was deducted. He contacted U.S. Army Human Resources Command (HRC) who said they could do nothing and directed him to contact the Defense Finance Accounting Service (DFAS). He contacted DFAS and explained the situation and they directed him to the Army Board for Correction of Military Records (ABCMR). 3. The applicant provides: * his Twenty Year Letter, dated 2 February 2001 * Orders 05-139-00001, issued by Headquarters and Headquarters, 311th Theater Signal Command on 19 May 2005 * his DD Form 2656, dated 27 February 2015, and endorsed by his spouse on 3 March 2015 * his RAS with pay due as of 30 October 2015 * his United Services Automobile Association (USAA) policy printout, dated 16 November 2015 CONSIDERATION OF EVIDENCE: 1. The applicant was born on 30 September 1955 and was married on 17 June 1978. He served as a commissioned officer in the Regular Army and U.S. Army Reserve and received his Twenty Year Letter on 2 February 2001. 2. The applicant's Twenty Year Letter notified him of his entitlement to participate in the RCSBP by application within 90 calendar days of the notification date. The letter states "If you do not submit your election within 90 calendar days, you will not be entitled to survivor benefit coverage until you apply for retired pay at age 60. If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits." 3. Orders C09-598292, issued by HRC on 11 September 2015, shows the applicant was placed on the Retired List effective 30 September 2015 (his 60th birthday), and authorized retirement pay. 4. The applicant provides: a. A DD Form 2656, which shows he applied for retired pay. Upon application for retired pay, he elected not to participate in SBP. He signed the form in the presence of a witness on 27 February 2015. His spouse signed the form in the presence of a notary on 3 March 2015. b. His RAS for pay due on 30 October 2015, which shows both RCSBP and SBP deductions commenced in connection with the initiation of his retired pay. 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 106-398, enacted 30 October 2000 but effective 1 January 2001, requires Reserve and Guard members, who have completed their service obligation, considered entitled for retired pay, but who are not yet age 60, to obtain their spouses' concurrence in RCSBP elections that do not provide maximum spouse coverage (immediate option). Applies to members receiving notification of service-completion after 1 January 2001. DISCUSSION: 1. The applicant's request for correction of his records to show he elected not to participate in the RCSBP was carefully considered. He contends he followed the instructions contained in his Twenty Year Letter, and once again he declined SBP coverage when he applied for retired pay at age 60. 2. The applicant received his Twenty Year Letter that clearly stated if he did not submit his election within 90 calendar days, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60. It appears he followed instructions stated on the letter by not electing RCSBP coverage within 90 days of the letter. This letter, though dated after 1 January 2001, did not incorporate the new spousal concurrence requirements of PL 106-398, and clearly induced the applicant's reliance on its terms. 3. The applicant applied for retired pay by submitting a DD Form 2656. He elected not to participate in the SBP, and his spouse concurred with the decision on 3 March 2015. However, RCSBP and SBP payments were deducted from his retired pay because DFAS properly applied the requirements of PL 106-398. 4. The applicant provided sufficient evidence of government error in his Twenty Year Letter. The letter should have told him full coverage was automatic if he did nothing, but instead the letter told him there would be no coverage if he did nothing. He and his spouse have clearly indicated their joint desire to decline RCSBP/SBP coverage. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013328 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018655 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2