ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20160018051 APPLICANT REQUESTS: change Reserve Component Survivor Benefits Plan (RCSBP) from option C (Immediate coverage) to option B (Defer). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 1883 (Survivor Benefit Plan Election Certificate) 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 Army Board for Correction of Military Records 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 was not fully informed of the cost of option C when he started collecting his retirement. He attended a military retirement briefing on 15 October 2016 where the cost of option C was explained. 3. A review of the applicant’s service record shows: a. The applicant was born in August 1960. He and X__ were married on 24 may 1986. b. Having had prior service in the Army National Guard (23 August 1983 to 19 February 1998), he enlisted in the U.S. Army Reserves (USAR) on 20 February 1998. c. On 23 January 2002, U.S. Army Reserve Personnel Command issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). d. On 11 March 2002, he completed DD Form 1883. He indicated he was married to X__ and they two dependent children (born in 1987 and 1991 respectively; neither is disabled). He elected spouse RCSBP spouse coverage, Option C (immediate coverage), based on the full gross pay. He and his spouse signed this form. [Option C means he elected to provide an immediate annuity beginning on the day after the date of his death, whether before or after age 60). e. On 24 November 2003, the applicant and X__ divorced. The Stipulated Judgement of Dissolution of Marriage and the Stipulated Judgement for the applicant and X__ directs the portion of the applicant’s retirement benefits X__ is entitled to. It specifically states X__, as the former spouse, is “awarded 48.2% of the maximum available survivor benefit annuity. Survivor benefit payments payable to former spouse shall be paid for the lifetime of former spouse.” The divorce decree did not require him to make a former spouse election. f. On 1 January 2004, he was transferred to the Retired Reserve. He completed over 21 years of qualifying service for non-regular retirement g. On 9 August 2004, a Supplemental Judgment was issued by the civil court concerning the division of the military retirement between X__ and the applicant. This judgment stipulated that the former spouse is permitted to file a deemed survivor beneficiary election on behalf of the applicant. h. On 9 September 2004, X. forwarded to Defense Finance Accounting Services (DFAS) a letter requesting "Deemed Election" and Notification of Order to Elect Former Spouse Beneficiary Under the Survivor Benefit. No record of response was provided by DFAS as part of the request for information from this office. i. On 22 September 2004, the applicant’s former spouse’s attorney sent a letter to DFAS. He indicated that this letter was submitted on behalf of former spouse X__, concerning Request for "Deemed Election" and Notification of Order to Elect Former Spouse Beneficiary Under the SBP. The attorney told DFAS that if their office required any additional information in connection with naming X__ as the "former spouse" beneficiary under the SBP of the applicant, to let him know, and with his letter, he enclosed: * A copy of the Certificate of Marriage of X__ and applicant * A certified copy of the Stipulated Judgment of Dissolution of Marriage * A certified copy of the Supplemental Judgment awarding the SBP benefits to X__ j. On 29 October 2016, the applicant married X__. k. On 26 August 2017, he submitted an SBP Election Change Certificate (DD Form 2656-6) along with a marriage certificate to a new spouse, X__. It shows he elected coverage for his spouse only, based on remarriage and he chose to resume existing level of coverage for his new spouse. He signed the document and it is witnessed, but notary public information is missing. [The DD Form 2656-6 is used to change a SBP election. A retired member may change an election under certain circumstances when specific conditions are met. This form is not used to elect to terminate SBP coverage or to elect coverage for a former spouse]. l. The applicant turns 60 in August 2020. 4. By law (Title 10, USC, section 1448) the plan applies to a person who is eligible to participate in the plan, and is married or has a dependent child when he is notified that he has completed the years of service required for eligibility for reserve-component retired pay, unless the person elects (with his spouse’s concurrence) not to participate in the plan before the end of the 90-day period beginning on the date on which he receives that notification. An election is irrevocable if not revoked before the end of the 90-day period. The applicant elected Option C within 90 days of receiving his 20-Year Letter. His decision is irrevocable. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon Title 10, Section 1448 stating that an SBP election is irrevocable if not revoked before the end of the 90-day period and the applicant made an initial election on 11 March 2002, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s SBP election. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan and established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances. 2. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60. Three options were 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 immeXtely upon their death if before age 60 3. 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. Option A, on the other hand, gives an eligible member the option to make an election at age 60. Because there are no benefits payable in the event of death prior to age 60, a person who opts in at that point pays no RCSBP premium cost, but only the basic SBP premium going forward. 4. Title 10, U.S. Code, section 1448: a. Paragraph a (3) states the plan applies to a person who is eligible to participate in the plan, and is married or has a dependent child when he is notified that he has completed the years of service required for eligibility for reserve-component retired pay, unless the person elects (with his spouse’s concurrence) not to participate in the plan before the end of the 90-day period beginning on the date on which he receives that notification. b. Paragraph a (4) states an election is irrevocable if not revoked before the end of the 90-day period. ABCMR Record of Proceedings (cont) AR20160018051 4 1