ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 September 20 DOCKET NUMBER: AR20170001718 APPLICANT REQUESTS: correction of her record to show she declined Reserve Component Survivor Benefit Plan (RCSBP) coverage APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: On-line Application 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 (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, in June 2010, she requested transfer to early reserve retirement due to disability. She received reassignment orders to Retired Reserve dated 21 July 2010. She started calling the Army Human Resources Command (AHRC) for her 15 year letter. She received her 15 year letter (undated) in August 2010. On 9 September 2010, she mailed her DD Form 2656-5 declining SBP. AHRC now claims the 2656-5 was submitted outside of the 90 day window. She believes HRC backdated iPerms upon realizing the 15 year letter was never released until she began calling in August 2010. She became eligible for age 60 retirement benefits on 13 September 2016. Defense Finance and Accounting Service (DFAS) is deducting $81.60 a month from her retired pay for RCSBP. She called DFAS numerous times to review her record and mailed a request for correction as she believes she timely submitted the SBP declination in 2010. It was denied by DFAS as being outside the 90 day window. She was advised to appeal through ABCMR. 3. In an undated memorandum, AHRC notified the applicant as a Selected Reserve member with at least 15 years qualifying service, she was eligible to apply for retired pay on attaining age 60. She had completed the required years of service for eligibility for retired pay upon application at age 60 (her 15-year letter). The memorandum informed her she had only 90 calendar days from the date she received the letter to submit her DA Form 2656-5) SBP Election Certificate. If she did not, she would be automatically enrolled in the RCSBP for spouse and children based on full retried pay and immediate coverage. 4. On 31 August 2010, a DA Form 2656-5 shows the applicant declined to make an election until age 60. The form further shows the applicant's spouse consented to the applicant's RCSBP election on 8 September 2010, and the form was notarized on the same date. 5. On 23 June 2016, the applicant was placed on the Retired List effective 13 September 2016. 6. The Soldier Management System (SMS) shows the applicant was issued a 15 year letter and it was placed in iPERMS on 26 August 2010. SMS further shows the applicant's DD Form 2656-5 was received by AHRC on 21 October 2010. 7. Public Law 92-425, the SBP, enacted 21 September 1972, 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. 8. Title 10, United States Code, Section 1448, provides that if a person makes an election not to participate in the SBP, the person’s spouse shall be notified of that election. Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse. An election received for less than the maximum level without spousal concurrence will automatically default in activation of SBP coverage at the maximum level. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is warranted. 2. The Board noted that SMS confirms that the applicant was issued a 15 year letter on 26 August 2010 and that a DD Form 2656-5 declining RCSBP was received on 21 October 2010. Because the applicant submitted her election, with spousal concurrence, within 90 days of being issued her 15 year letter, the Board determined her election not to participate in SBP should be honored. ? 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 submitted a timely election not to participate in the Survivor Benefit Plan and returning to her any Survivor Benefit Plan premiums she has paid. 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. Public Law 92-425, the SBP, enacted 21 September 1972, 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. 3. Title 10, United States Code, Section 1448, provides that if a person makes an election not to participate in the SBP, the person’s spouse shall be notified of that election. Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse. An election received for less than the maximum level without spousal concurrence will automatically default in activation of SBP coverage at the maximum level. 4. Department of Defense Instruction (DODI) 1332.42 provides the responsibilities and procedures for administering the Survivor Annuity Program, which is comprised of the Survivor Benefit Plan (SBP) and the Reserve Component Survivor Benefit Plan (RC- SBP). Enclosure (3) to this instruction provides the procedures for administering the SBP and the RC-SBP. a. Paragraph 2a states a member entitled to retired pay based on active service who has a spouse or dependent child is considered a participant having maximum SBP coverage, unless the member, with spousal concurrence if married, elects less-than- maximum spouse coverage, child-only coverage, or not to participate in the Program. Unless such election is made prior to the first day of entitlement to retired pay, automatic coverage for maximum spouse or spouse and child coverage shall be entered. An election under this paragraph is irrevocable, unless otherwise provided by law, if not revoked before the date on which the person first becomes entitled to retired pay. b. Paragraph 2b states a RC member who has a spouse or dependent child upon being notified of eligibility to receive retired pay is considered a participant having maximum RC-SBP coverage, unless the member, with spousal concurrence if married, elects less-than-maximum spouse coverage for an immediate annuity, child-only coverage, deferred coverage, or not to participate in the Program. An election for less- than maximum RC-SBP coverage must be received by the member’s Service within the 90-day period immediately following such notification of eligibility. An election under this paragraph is irrevocable, unless otherwise provided by law, if not revoked before the end of the 90-day period. c. Paragraph 5a states written spousal concurrence is required when the member elects to decline coverage or provide the spouse with less than the maximum SBP coverage available, to include electing child-only coverage, and when a member eligible for RC-SBP declines coverage or elects coverage that provides less than a maximum immediate spouse annuity. The signature of the spouse must be notarized. The requirement to have the spouse’s signature notarized is not to suggest that the spouse has received additional counseling regarding the option being selected. It simply provides certification that the spouse signed the form. d. Paragraph 7e states a member may elect to discontinue participation by submitting DD Form 2656-2 (SBP Termination Request) during the period that is more than 2 years, but less than 3 years, after the first date of entitlement to receive retired pay. The member must submit the request no earlier than the 1st day of the 25th month, and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable. A member electing to terminate coverage is not eligible for continuation in the Program; however, the member has 30 days after submitting a request to discontinue participation to revoke the request. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170001718 2 1