SAMR-RB 26 June 2018 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160004352 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 03 April 2018, in which the Board members unanimously recommended denial of the applicant's request 2. I have reviewed the findings, conclusions, and Board member recommendations find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by showing the applicant declined to participate in the Survivor Benefit Plan on 14 August 2014 and reimbursing her any monies for premiums already paid as a result of this correction. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 26 October 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20160004352 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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: 3 April 2018 DOCKET NUMBER: AR20160004352 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20160004352 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, in effect, correction of her records to show she elected not to participate in the Survivor Benefit Plan (SBP) 2. The applicant states: * upon requesting retired pay at age 60, she elected not to participate in the SBP; her spouse at the time was active duty and he is now retired * she has discussed this issue with the appropriate personnel and she was told nothing could be done for 2 years * she has since learned from the Defense Finance and Accounting Service (DFAS) that this was incorrect * she believes she was improperly counseled and her request was not honored 3. The applicant provides: * DD Form 2656 (Data for Payment of Retired Personnel) * May 2017 Retiree Account Statement * Marriage Certificate * Signed (not notarized) statement from her spouse CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 15 June 1984. She completed the Army Nurse Corps Officer Basic Course. 2. She and her spouse, Paul, were married on 29 June 1991. 3. She served in a variety of assignments and she was advanced to lieutenant colonel (LTC) in February 2002. 4. She entered active duty on 10 September 2004 and she was honorably released from active duty on 8 March 2006. 5. On 14 July 2005, the U.S. Army Human Resources Command (HRC) issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). In addition to informing her that she had completed the required years of qualifying reserve service and would be eligible to retired pay on application at age 60, this letter also informed her that: a. Public Law 95-397, 30 September 1978, created the Reserve Component Survivor Benefit Plan (RCSBP), in which she was entitled to participate. RCSBP is her sole means of protecting her retired pay entitlement. b. 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: * Option A (defer enrollment until age 60 when the member applies for retired pay) * Option B (enroll and pay an annuity when the member would have been age 60): Enroll spouse or spouse and child(ren) at LESS THAN the maximum level or Enroll child(ren) only * Option C (enroll and pay an annuity immediately upon the member's death) but: Enroll spouse or spouse and child(ren) at LESS THAN the maximum level or Enroll children only c. 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. 6. There is no indication the applicant declined RCSBP coverage, with spousal concurrence, within the allotted time following receipt of her 20-Year Letter. 7. On 10 July 2012, HRC published orders transferring her to the Retired Reserve after having reached maximum authorized years of service. 8. On or about 19 August 2014, the applicant submitted a request for retired pay at age 60. Accordingly, on 26 August 2014, HRC published orders placing her on the retired list in her retired grade of LTC effective 12 November 2013, her 60th birthday. 9. She provides: a. DD Form 2656, dated 14 August 2014, wherein she indicated that she was married and had dependent children. She elected not to participate in the SBP. She also listed her spouse's name as the insurable interest beneficiary of her SBP. She and a witness signed this form. Her spouse concurred with her election and also signed this form on 14 August 2014. b. June 2017 Retiree Account Statement, indicating two SBP deductions, the first is spouse only SBP cost and the second is the RCSBP cost. c. a statement titled "Spouse Concurrence Statement" signed by her spouse indicating he concurs with the SBP election made by his spouse to not participate in the plan. 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 are available: * Option A: elect to decline enrollment and choose at age 60 whether to start SBP participation * Option 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 * Option C: elect that a beneficiary receive an annuity immediately upon their death if before age 60 2. Once a member elects either option B or option C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in the RCSBP - the options automatically roll into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. 3. 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 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. 4. Public Law 106-398, dated 30 October 2000, requires that upon receipt of the 20-year letter, a qualified Reserve Component 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 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) DISCUSSION: 1. The evidence of record shows, upon receipt of her 20-year letter in July 2005, the applicant was advised that 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 action is taken by the member, with the spouse concurrence, to decline coverage. The applicant took no action. As such, her coverage defaulted to full spouse and children RCSBP coverage, based on the full amount, Option C (immediate coverage). This option provided the applicant's spouse with an immediate annuity should she have died prior to reaching age 60. 2. An election, once made, is irrevocable except in certain circumstances, such as divorce, death, or congressionally-mandated changes. Qualified Reserve Component members who fail to decline coverage within the allotted time upon receiving their 20-Year Letter do not have the option to change that election upon reaching age 60. Once the retiree reaches age 60, the RCSBP coverage rolls into SBP coverage. That is why the applicant pays two premiums: the cost of RCSBP coverage between July 2005 (20-year letter) and November 2013 (age 60) and the cost of the SBP, beginning in November 2013. 3. The applicant completed a DD Form 2656 in August 2014 (when she appears to have applied for retired pay). This form is invalid because once a Reserve Component Soldier elects either option B or option C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. The DD Form 2656 the applicant submitted in August 2014, which shows her spouse’s concurrence, could be viewed as a premature attempt at cancellation of SBP and also could be viewed as evidence of her spouse’s continuing concurrence with a decision not to participate in the program. 4. By law retirees have a 1-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 applicant's window to terminate her SBP occurred opened in November 2015 and closed in November 2016. Such termination would have been addressed to DFAS. In her application submitted during her window of eligibility to withdraw, she indicated she was aware of that opportunity. 5. Nothing in her records shows she was improperly counseled. The decision to enroll or not enroll in the SBP is a personal decision made by the Soldier. The applicant was automatically enrolled in the RCSBP when she failed to take action in 2005. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160004352 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004352 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2