IN THE CASE OF: BOARD DATE: January 14, 2020 DOCKET NUMBER: AR20170003020 APPLICANT REQUESTS: correction of his military records to show he timely elected not to participate in the Reserve Component Survivor Benefit Plan (RCSBP) when he received his 20-Year Letter in September 2002. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * DD Form 2656 (Data for Payment of Retired Personnel) * Summary of Retired Pay Account FACTS: 1. The applicant states he received his 20-Year Letter in September 2002. At that time, he and his wife chose not participate in the program. He can find no documents to support that. Some 13 years later, he applied for retirement and filled out a DD Form 2656 (Data for Payment of Retired Personnel). Again, he and his wife chose not to participate. After receiving his retired pay, he noticed the deductions for the SBP. He called the Defense Finance and Accounting Service (DFAS) to inquire and he was told the only way is to request a change to the record. So, again, he is requesting to be removed from the SBP program. 2. Review of the applicant’s service records shows: a. The applicant was born in June 1954. He and his spouse X__ were married in October 1976. b. He was appointed a Reserve warranted officer of the Illinois Army National Guard and executed an oath of office on 18 August 1989. He served in a variety of assignments and advanced to chief warrant officer five (CW5). c. On 3 September 2002, ILARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). d. There is no indication the applicant submitted an election (DD Form 1883 (SBP Election Certificate)) or DD Form 2656-5 (RCSBP Election Certificate)) declining the RCSBP or that his spouse concurred with such election. e. On 30 November 2015, he was separated from the ARNG and transferred to the Retired Reserve. f. On 16 February 2016, he submitted an application for retired pay at age 60 (DD Form 108), indicating he wanted to retire on 1 December 2015. g. With his application for retired pay, he submitted a DD Form 2656 (Data for Payment of Retired Personnel). He indicated he was married to X__ and they had no children. He elected not to participate in the SBP. His spouse concurred with his election, signed the form on the same date, and had her signature notarized. h. On 18 March 2016, the U.S. Army Human Resources Command published orders placing him on the Retired List in his retired grade of CW5, effective 1 December 2015. i. DFAS sent her a Summary of Retired Pay Account welcoming him to the Retired Rolls and provided a breakdown of his retired pay. It included a deduction for spouse only SBP coverage. 3. Public Law (PL) 95-397, 30 September 1978 created the Reserve Components Survivor Benefit Plan (RCSBP). It is a service member’s sole means of protecting his/her retired pay entitlement. Additionally, PL 106-398, dated 30 October 2000, requires that upon receipt of the Notification of Eligibility for Retired Pay letter (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 Full Retired Pay, UNLESS spouse concurrence is provided to allow one of the following elections: * Option A (defer enrollment until age 60 when you apply for retired pay). * Option B (enroll and pay an annuity when YOU would have been age 60): Enroll spouse or spouse and children at LESS THAN the maximum level or Enroll children only * Option C (enroll and pay an annuity immediately upon your death) but: Enroll spouse or spouse and child(ren) at LESS THAN the maximum level or Enroll children only 4. The statute (10 USC section 1448) also states 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 found relief was warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded that the applicant provided the proper documentation several times stating they didn’t want to participate in the SBP election. As such, the Board determined not allowing the applicant to elect not to participate in SBP would create an injustice which warrants correction. 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/DFAS records of the individual concerned be corrected to show timely submission was provided by the applicant for his RCSBP election of declination and all previously deducted premiums should be refunded to the applicant. 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 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. Since its creation, it has been subjected to a number of substantial legislative changes 2. Title 10, U.S. Code, section 1448 mandates a notice to a spouse if a member elected not to participate in the SBP. The statute also provides for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declines to participate in the SBP prior to receiving retired pay. The statute also requires 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003020 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1