IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20170011112 APPLICANT REQUESTS: reimbursement of Survivor Benefit Plan (SBP) premiums that were deducted from her retired pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Memorandum, Headquarters, Rhode Island National Guard, dated 6 June 1998, subject: Notification of Eligibility for Retired Pay at Age 60 * DD Form 1883 (SBP Election Certificate), dated 28 August 1998 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) effective 3 March 2003 * DD Form 2656 (Data for Payment of Retired Personnel), dated 26 May 2016 * DD Form 108 (Application for Retired Pay Benefits), dated 26 May 2016 * NGB Form 23B (Army National Guard Retirement Points History Statement), dated 26 May 2016 * DD Form 2656-6 (SBP Election Change Certificate), dated 7 July 2016 * Orders C11-690805, U.S. Human Resources Command, Fort Knox, KY, dated 3 November 2016 REFERENCES: 1. Public Law 95-397, the Reserve Component Survivor Benefit Plan (RCSBP), enacted 30 September 1978, provided a way for those who had 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. a. Three options are available: (A) elect to defer enrollment and choose at age 60 whether to participate in the SBP; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment until the member's 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. b. If death does not occur before age 60, the RCSBP costs for Options B and C are deducted from the member's retired pay (costs for Option C being the more expensive). c. Once a member elects either Option B or C in any category of coverage, that election is irrevocable. d. 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 RCSBP – RCSBP automatically converts to 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 die prior to age 60. 2. 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. 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. No premiums will be refunded to those who opt to disenroll. Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay. 3. Department of Defense 7000.14-R (Financial Management Regulation, Volume 7B: "Military Pay Policy and Procedures – Retired Pay") provides information for the entitlement to military retired pay. a. Chapter 43 provides information for SBP election options, changes to elections, coverage, and termination of coverage. Premiums are suspended for spouse or former spouse coverage when there is no longer an eligible beneficiary. Premiums are also suspended for child coverage when there is no eligible child beneficiary. b. Table 45-4 (Suspension and Termination of Premium) shows premiums are suspended when a retired member: * is recalled to active duty for more than 30 days * waives retired pay for a civil service retirement * elected coverage for spouse (or former spouse) and the spouse (or former spouse) is no longer an ineligible beneficiary FACTS: 1. The applicant states: * her SBP premiums deduction was suspended prior to age 60, but the cost has been deducted from her retired pay * the Rhode Island Retirement Benefits Counselor completing the retirement briefing and necessary paperwork gave her the option to suspend SBP coverage, but used the incorrect form to suspend coverage * she was told she could make this change prior to age 60, which she requested, using a DD Form 2656-6, dated 7 July 2016 * she was not aware that this had been done until she started receiving her retired pay and documentation 2. Headquarters, Rhode Island National Guard, memorandum, dated 6 June 1998, notified the applicant of her eligibility for retired pay at age 60. 3. Her DD Form 1883, dated 8 August 1998, shows she elected: * SBP coverage for "Spouse and Children" * to provide a "Full" annuity based on the full amount of her retired pay * "Option C" for immediate coverage beginning on the day after her death, whether before or after age 60 4. Her NGB Form 22 shows she was discharged from the Army National Guard of Rhode Island and transferred to the U.S. Army Reserve Control Group (Retired Reserve) effective 3 October 2003. 5. Her DD Form 2656, dated 26 May 2016, shows she elected SBP coverage for "Spouse Only" with coverage based on "Full Gross Pay." 6. On 7 July 2016, she completed a DD Form 2656-6 to change her SBP coverage. a. The basic instructions state: "NOTE: Do not use this form to elect to terminate SBP coverage under the provisions of Title 10 U.S.C. [U.S. Code], Section 1448a. Use DD Form 2656-2, 'SBP Termination Request.'" b. Section II (Current Coverage), block 7 (My Current Coverage Is), states: "NOTE: Suspended coverage occurs when the member loses his/her spouse beneficiary to death or divorce; or his/her former spouse beneficiary remarries before age 55; or his/her children exceed the age for eligibility." c. Section IV (Requested Change to Coverage), block 8 (I am Requesting a Change in Coverage Based on), does not show any conditions selected that trigger eligibility to change coverage. d. Block 9 (Place an X in the Appropriate Box to Indicate Your Election) shows she checked "Suspend Coverage." 7. U.S. Human Resources Command Orders C11-690805, dated 3 November 2016, retired her and placed her on the Retired List on 30 March 2017. 8. She reached age 60 on XX March 2017. 9. An email from the applicant, dated 10 January 2020, states she terminated her SBP coverage when she reached age 62 in March 2019. She requests correction of her records to receive the back pay that was deducted from her retired pay as a result of completing the incorrect form prior to age 60 in March 2016. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The applicant has not shown evidence indicating her spouse concurred with her attempt to suspend RCSBP coverage prior to reaching age 60, nor has she shown evidence of the death of or divorce from her spouse prior to reaching age 60. The Board agreed that, even had her spouse concurred, her initial election was irrevocable until the 25th month after she began to receive retired pay at age 60 unless her coverage was suspended as a result of divorce or her spouse's death. The Board noted that she did terminate her SBP coverage upon reaching age 62. The Board agreed that this was her only option under the governing statute and that there is insufficient evidence to conclude that she should be reimbursed any premiums she paid prior to terminating the coverage. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011112 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1