ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 November 2019 DOCKET NUMBER: AR20170011963 APPLICANT REQUESTS: In effect, the Survivor Benefit Program (SBP) fees and deductions from her military retirement be stopped and that the amounts paid into SBP from her retirement be reimbursed. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter in support of DD Form 149, 19 May 2017 * Notification of Eligibility (NOE), 20 year letter, 20 August 2003 * Retiree Account Statement, 1 November 2016 * Divorce Decree, 15 April 1994 * DD Form 2656 (Data for Payment of Retired Personnel) * Retirement Orders C07-696857, 26 July 2016 * Duplicate Marriage Certificate, 31 March 2006 * Letter to Defense Finance and Accounting Service (DFAS), 13 December 2016 * Transcripts of emails from Human Resources Command (HRC) to DFAS * SBP coverage and cost paid FACTS: 1. The applicant states: a. DFAS has erroneously listed a former spouse from 23 years ago as the beneficiary of her SBP. She divorced her former spouse X__ X. X__ in 1994 nine years before she was eligible for retirement in August 2003. At the time of eligibility, she had no dependents. DFAS is charging SBP payments and cost because they say she failed to make an election to decline or elect coverage for spouse and dependents within 90 days at the receipt of the 20 year letter. The 20-year letter was not posted to her record until 2008, 5 years after her retirement eligibility. She married her current spouse X__ X__ in 2006, three years after her eligibility. They both elected on her retirement paperwork on 22 June 2016 not to receive SBP. She had no dependents and was not married at the time of eligibility for retirement. b. The Deputy of HRC Reserve Retired Pay has communicated with DFAS three times to indicate that she should not be paying SBP. Her retirement packet from HRC was submitted to DFAS indicating no SBP was due. HRC stated that the 20-year retirement letter was not put into her records until 2008. Her eligibility for retirement was in 2003. As a Reservist, she was not counseled on the election requirements and was not even sure she received the 20-year letter in a timely manner. As a single Soldier she would not have been be required to make elections for dependents, she did not have at the time. She spoke with DFAS on eight separate occasions each time receiving different guidance. On three separate occasions, she was told it would be fixed. On the forth call, she was told to send her divorce degree and DD Form 2656 to DFAS which she did in both hardcopy and email. After calling back for a status, she was told to contact HRC, Board of Corrections. c. In the 20-year letter, paragraph 4 states that “upon receipt of this letter, a qualified Reserve Component member, who is married, will automatically be enrolled in the RCSBP under Option C, Spouse and Child(ren) coverage based on Full Retired Pay, UNLESS spouse concurrence is provided to allow one of the following elections. Nowhere in the 20-year letter does it state that unmarried Soldiers will be automatically enrolled in SBP. It makes no sense if a Soldier is not married and does not have a spouse or child(ren), that they should pay for SBP charges and costs. 2. The applicant provides: * Letter in support of DD Form 149, 19 May 2017, addressed above * Notification of Eligibility (NOE), 20 year letter, 20 August 2003 showing she completed the required years of qualifying reserve service and is eligible for retired pay on application at age 60 in accordance with Title 10, USC 1223 * Retiree Account Statement, 1 November 2016 showing she was being deducted for SBP costs * Divorce Decree, 15 April 1994 showing she had a dissolution of marriage granted which is silent on SBP * DD Form 2656 (Data for Payment of Retired Personnel) showing she elected not to participate in SBP, signed and dated on 22 June 2016, also shows in block 32 (spouse) signed and dated on the same date; the form was notarized * Retirement Orders C07-696857, 26 July 2016 shows she was placed on the retired list on 4 April 2016 * Duplicate Marriage Certificate, 31 March 2006 shows the applicant married X__ X. X__ III on 31 March 2006 * Letter to Defense Finance and Accounting Service (DFAS), 13 December 2016 showing she attempted to resolve this issue through DFAS on several occasions * Transcripts of emails from Human Resources Command (HRC) to DFAS attempting to resolve this issue several times * SBP coverage and cost paid showing payments made from 19 October 2016 until application date 3. A review of the applicant’s service records shows the following: a. The applicant was born on XX X__ 19##. b. She enlisted in the United States Army Reserve on 10 September 1981 as a cadet. She was appointed as a Reserve commissioned officer on 20 July 1983. c. Her NOE for retired pay at age 60 (twenty year letter) was issued on 20 August 2003. Paragraph 4 states: “Public Law 95-397, 30 Sep 1978, created the Reserve Component Survivor Benefit Plan (RCSBP), in which you are entitled to participate. RCSBP is your sole means of protecting your retired pay entitlement. NOTE: Public Law 106-398, 30 Oct 2000, requires that upon receipt of this Letter, a qualified Reserve Component member, who is married, will automatically be enrolled in the RCSBP under Option C, Spouse and Child(ren) 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 child(ren) at LESS THAN the maximum level or Enroll child(ren) 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 d. Orders C-04505446, 6 April 2015 shows she was assigned to the retired reserve on 6 April 2015. Her DA Form 5016 (Chronological Statement of Retirement Points) shows she completed 31 years and 1 day of qualifying time for retirement. e. Her application for retired pay benefits completed on 21 June 2016 shows she applied for retired pay to begin on 4 April 2016. f. In connection with her application for retired pay, she completed a DD Form 2656 that shows she elected not to participate in SBP. She indicated she was married to her current spouse X__ on 31 March 2006. She and her current spouse both signed the form on 22 June 2016 and had the form notarized. g. Orders: C07-696857, 26 July 2016 shows she was placed on the retired list on 4 April 2016. 4. By law, Title 10, U.S. Code 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. Spouse concurrence is required. 5. By law Title 10, U.S. Code 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 for disenrollment. 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 previously submitted a request for nonparticipation at the time of retirement and that submission was in accordance with timeliness requirements. As such, the Board recommended granting the requested relief. 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 changed her SBP election to nonparticipation on 4 April 2016 and the request was received and processed by the appropriate office in a timely manner. 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. This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. 2. 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 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. 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) AR20170011963 5 1