ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 August 2019 DOCKET NUMBER: AR20170007222 APPLICANT REQUESTS: she be dis-enrolled from the Survivor Benefit Plan (SBP) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * a notarized statement from applicant’s husband * an SBP Termination Request FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150007587 on 2 June 2016. 2. The applicant states she like to be dis-enrolled from the Survivor Benefit Plan (SBP) and all premiums refunded or, in the alternative, that her participation be terminated effective upon the first opportunity, with any overpayments refunded. 3. The applicant provides, a letter from her former spouse, a Chief Warrant Officer Five who retired from the Regular Army in April 2007 with over 37 years of active federal service. It states his wife’s SBP paperwork did not reflect his preference. He understands SBP and neither wants nor needs the benefits. His statement was dated 5 December 2016 and notarized on 12 December 2016. 4. DD Form 2656-2 (SBP Termination Request), dated 12 December 2016. 5. A review of the applicant’s service record shows: a. After service in the United States Air Force Reserve, she was appointed a Captain in the United States Army Reserve with an effective date of 17 February 1995. b. Her “Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) was issued on 10 March 2011. The text of the letter includes information about the Reserve Component Survivor Benefit Plan (RCSBP) to include that full immediate spouse coverage is automatic unless declined, with spousal concurrence, within ninety days. There is no evidence applicant responded. c. Born on 21 October 1954, she applied for non-regular retired pay on 2 December 2013. d. The DD Form 2656 (Data for Payment of Retired Personnel), dated 1 November 2013, submitted in conjunction with her retirement application shows she declined SBP spouse coverage. Her husband concurred with her declination attempt before a notary public that same day. e. A Chronological Statement of Retirement Points, dated 5 September 2013, shows applicant’s retirement is based upon the equivalent of approximately one-fifth of the service upon which her husband’s own military retirement is based. 6. By law, Soldiers in the Reserve Component are given the opportunity to elect or decline RCSBP coverage when notified of their eligibility to receive non-regular retired pay. The program allows them to protect their entitlement to retired pay by locking in an annuity for dependents even if they do not live to retirement age. Beginning with Twenty-Year letters issued in January 2001, a decision to decline RCSBP spouse coverage, elect less than maximum spouse coverage, or delay election until reaching age sixty requires spousal concurrence. In the absence of concurrence coverage defaults to full immediate spouse coverage. 7. Coverage under RCSBP automatically becomes SBP coverage once the Soldier reaches age sixty. Premium deductions for both RCSBP and SBP begin when Soldiers start drawing their non-regular retirement pay. 8. Soldiers may, with spousal concurrence, discontinue SBP coverage at any time during the one-year period beginning on the second anniversary of the date on which payment of retired pay began. No premiums are refunded. Deductions of RCSBP premiums continue. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions were carefully considered. The evidence provided shows the applicant and her spouse elected not to participate in the SBP approximately one year before her 60th birthday; however, the election was not processed. Her spouse acknowledged in 2016 that he still concurred with election not to enroll in SBP. The Board agreed there is sufficient evidence to grant relief by terminating SBP coverage effective on her 60th birthday with the back pay of premiums to that date. 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 that the evidence presented was 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 she properly declined the Survivor Benefit Plan (SBP) on 21 October 2014, with proper spousal concurrence, and her election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the repayment of any previously paid SBP premiums. 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 1448, addresses the application of the Survivor Benefit Plan (SBP) and Reserve Component Survivor Benefit Plan (RCSBP). It states, in pertinent part: a. Eligible participants include persons entitled to retired pay and persons who would be eligible for reserve component retired pay but for the fact that they are under 60 years of age. b. A married person who is eligible to provide a reserve-component annuity may not without the concurrence of the person’s spouse elect— (i) not to participate in the Plan; (ii) to designate the effective date for commencement of annuity payments under the Plan in the event that the member dies before becoming 60 years of age to be the 60th anniversary of the member’s birth (rather than the day after the date of the member’s death); (iii) to provide an annuity for the person’s spouse at less than the maximum level; or (iv) to provide an annuity for a dependent child but not for the person’s spouse 2. Title 10 USC, section 1448a, states, in pertinent part, a participant in the Plan may elect to discontinue participation in the Plan at any time during the one-year period beginning on the second anniversary of the date on which payment of retired pay to the participant commences. A married participant may not make such an election without the concurrence of the participant’s spouse. 3. The Department of Defense Financial Management Regulation (DOD FMR), directs statutory and regulatory financial management requirements, systems, and functions for all appropriated and non-appropriated, working capital, revolving, and trust fund activities. a. Volume 7B, Chapter 43, addresses SBP elections and election changes. Paragraph 430702 E states no premiums are refunded as a result of terminating coverage. No premiums will be charged after the effective date of termination unless the member had RCSBP coverage. b. Volume 7B, Chapter 54 addresses the RCSBP and includes numerous definitions applicable to both RCSBP and SBP including: * 540212—Standard Premium is the reduction in retired pay made to provide the member with SBP coverage for the period after a member becomes entitled to retired pay. It is distinct and separate from the Reserve Component Premium. * 540213—Reserve Component Premium—when a Reserve member participates in the RCSBP after first becoming eligible based on 20 qualifying years of satisfactory service, coverage for the member’s survivors commences, but premiums are not paid until the member first becomes actually entitled to retired pay. At that time, reductions in the member’s retired pay are made that are specifically related to the RCSBP coverage that was already provided while the member awaited the requisite age of entitlement to retired pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170007222 3 1