ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  25 April 2019

	DOCKET NUMBER:  AR20160016481


APPLICANT REQUESTS: Disenrollment from the Survivor Benefit Plan (SBP).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 24 July 2001 and 13 December 2005
* Orders Number D 349-13, dated 12 December 2011
* DD Form 2656 (Data for Payment of Retired Personnel), dated 19 January 2012
* Retiree account statement, dated 3 December 2017
* Spouse’s letter to the Army Board for Correction of Military Records (ABCMR), dated 11 September 2018

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he elected not to participate in the SBP when he retired from the U.S. Army Reserve (USAR).  He was not able to get an appointment with the outprocessing center prior to his retirement date given by the Physical Evaluation Board (PEB).  Even though he waived SBP coverage, it automatically was initiated.  He would like to have the SBP coverage stopped back to when it began since he waived the coverage.  The attached DD Form 2656 shows his spouses signature in block 32a, acknowledging she would not receive SBP benefits.

3.  A review of the applicant’s service records show the following on:

* 27 September 1996 – having had prior service in the Regular Army and the Army National Guard, the applicant enlisted in the USAR
* 14 October 2011 – found physically unfit by the PEB with a combined rating of 40% and his disposition would be “permanent disability retirement”
* 1 November 2011 – Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points) shows he had 20 years, 5 months, and 5 days of qualifying service for retirement

4.  On 8 December 2011, U.S. Army Human Resources Command issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) it specified the following:

   a.  Public Law 95-397, 30 September 1978, created the Reserve Component SBP (RCSBP), in which he was entitled to participate.  RCSBP was the sole means of protecting his retired pay entitlement.
   
   b.  Public Law 106-398, 30 October 2000, required that upon receipt of the letter, a
qualified Reserve Component (RC) member who was married would automatically be enrolled in the RCSBP under Option C below, Spouse and Child(ren) coverage based on Full Retired Pay, unless spouse concurrence was provided (and witnessed by a notary) to allow one of the following elections:

* Option A (defer enrollment until age 60 when you apply for retired pay)
* Option B (enroll now with the death annuity paid to your designated beneficiary when you would have been age 60, if you die before age 60)
* Option C (enroll with the death annuity paid immediately upon notification of your death, regardless of your age)

   c.  He must notify the command, using the DD Form 2656-5 (RCSBP Election Certificate), of his decision within 90 days of the date of this memorandum.

5.  On 15 December 2011, Orders Number D 349-13 retired the applicant by reason of permanent physical disability.

6.  The applicant provides:

* DD Forms 214, providing a summary of his active duty service
* DD Form 2656, showing in item 26 (Beneficiary Category) item g “he elected not to participate in the SBP”; he signed the form on 19 January 2012 before a Retirement Services Officer and his spouse concurred with the declination of coverage before a military notary  on 9 March 2012
* retiree account statement, showing SBP deductions for spouse and child
* letter from his spouse wherein she reiterated her original intent was to concurred and also requested the SBP debt to be cancelled

7.  Public Law 95-397, the Reserve Component SBP (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.
BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was warranted.  Based upon the documentary evidence submitted by the applicant and within the service record, the Board concluded that the applicant and his spouse had always intended to waive SBP coverage and thus the Board recommended full relief. 

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 and his spouse elected to not participate in the Survivor Benefit Plan in a timely manner.
	 
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.



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.


2.  Title 10 USC, section 1448(a)(2) & (3), in effect at the time and currently, essentially states that a person eligible for retired pay who is married or has a dependent child when he becomes entitled to retired pay is a participant in RCSBP/SBP unless he elects (with his spouse’s concurrence) not to participate in the Plan.  Spousal consent/concurrence is required if the member elects not to participate in the Plan, to provide an annuity for the spouse at less than the maximum level, or to provide an annuity for a dependent child but not for the person’s spouse.

ABCMR Record of Proceedings (cont)	AR20160016481
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