ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20160018620 APPLICANT REQUESTS: correction of her military records to show she elected not to participate in the Survivor Benefit Plan (SBP), and reimbursement of SBP premiums collected. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Congressional correspondence * Spouse concurrence statement 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 she left the U.S. Army Reserve (USAR) after 21 years and waited until she was 60 years of age to get her retirement benefits. She did not elect SBP in 2002. Yet, they have been deducting money out of her retired pay for years, and they continue to do so. The paperwork should be saved on microfiche at what used to be called Personnel Command (PERSCOM). It should show her intent to decline participation. 3. Review of the applicant’s service records shows: a. The applicant was born in January 1956. b. She was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 15 December 1981. She and her spouse X were married on 24 April 1982. c. She served in a variety of positions and attained the rank of lieutenant colonel (LTC). a. d. On 16 January 2002, the Army Reserve Personnel Command (AR-PERSCOM), issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). e. On 23 March 2002, the applicant completed a DD Form 1883 (SBP Election Certificate). She indicated that she was married to X and they had dependent child(ren) (but did not list any). She elected to enroll in the Reserve Component Survivor Benefit Plan (RCSBP), spouse coverage, under Option A (Defer (meaning she declined to make an election at the time)). She and a witness authenticated this form with their signatures and it was entered into his military records. He spouse R concurred with her election and also authenticated this form with his signature. f. On 22 January 2004, she was issued orders transferring her to the Retired Reserve, effective 22 January 2004. g. On 6 August 2015, she submitted an Application for Retired Pay Benefits. h. On 9 December 2015, the U.S. Army Human Resourced Command (formerly known as PERSCOM), published order placing her on the retired list in the retired grade of LTC effective 12 January 2016 (her 60th birthday). i. DFAS records do not reflect she submitted an SBP election on or before her retirement date. Her SBP coverage defaulted to spouse and child(ren) as required by law. j. On 7 August 2016, after she had retired, she provided a DD Form 2656 (Data For Payment of Retired Personnel) dated 7 August 2016. On this form, she indicated that she was married to R and elected not to participate in the SBP. She and a witness signed this form. His spouse concurred and signed this form. His signature is notarized. k. On 17 June 2019, she provided another concurrence statement from her spouse indicating he concurs with her request to terminate the SBP. 4. Title 10, U.S. Code (10 USC) sections 1448-1553 govern the SBP. 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) * 5. Title 10, USC, section 1448, provides for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay. 6. Title 10, USC, section 1448a, provides 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the applicant’s 7 August 2016 election to not participate in the SBP program, as well as the applicant’s spouse signing off on the non- participating election, the Board concluded that the applicant made a timely decision not to participate in SBP; therefore, the record should be corrected to reflect the applicant submitted a declination of SBP with spousal concurrence prior to the receipt of retired pay and she should be refunded all collected premiums. 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 declined with spousal concurrence participation in the SBP prior to the receipt of retired pay and that all collected premiums be refunded. 8/19/2019 X CHAIRPERSON Signed by: 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 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) 5. Title 10 U.S. Code (USC), section 1448, required notice to a spouse if a member elected not to participate in the SBP. The statute also provided for automatic enrollment 1. for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay. Title 10 USC, section 1448 was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount.