ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 






IN THE CASE OF:  BOARD DATE:  1 May 2020 DOCKET NUMBER:  AR20180006162 


APPLICANT REQUESTS:  in effect, correction of his records to show he declined Survivor Benefit Plan (SBP) coverage. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record under the Provisionsof Title 10, U.S. Code, Section 1552)

.DD Form 2656 (Data for Payment of Retired Personnel), dated 6 December 2017



REFERENCES: 

1.Army Regulation 135-180 (Retirement for Non-Regular Service) implementsstatutory authorities governing granting retired pay for Non-Regular service to Soldiersin the Army National Guard, Army National Guard of the United States, and U.S. ArmyReserve.  Chapter 3 (Reserve Component Survivor Benefit Plan (RCSBP)) providespolicies and procedures for implementing the RCSBP authorized in Title 10, U.S. Code,sections 1447 through 1455.

a.Paragraph 3-2 states the RCSBP allows Reserve Component Soldiers andformer Soldiers who are not in receipt of retired pay and received their Notification of Eligibility for Retired Pay at Age 60 after 1 December 1979 to provide a survivor annuity for their dependents should the Soldier or former Soldier die before reaching age 60 and receipt of retired pay.  Those eligible must elect one of the three options offered on the DD Form 2656-5.  The three elections are: 

.Option A (Declination of Coverage) – decline to make an election until age 60or the date eligible to request retired pay based on reduced eligibility age

.Option B (Deferred Annuity) – elect to provide an annuity beginning on the60th anniversary of birth should the Soldier die before that date or on the dateof death should the Soldier die on or after his or her 60th birthday

.Option C (Immediate Annuity) – elect to provide an immediate annuitybeginning on the day after Soldier's death



b.Paragraph 3-2d states all eligible personnel have 90 days from receipt of theNotification of Eligibility for Retired Pay at Age 60 to make their election and return the form to the appropriate office.  U.S. Army Reserve Soldiers will return the original copy of DD Form 2656-5 to the Commander, U.S. Army Human Resources Command (AHRC-PDP-TR), 1600 Spearhead Division Avenue, Department 420, Fort Knox, KY 40122-5402 

c.Paragraph 3-3c states Soldiers who are eligible to make an election and do notcomplete a DD Form 2656-5 (RCSBP Election Certificate) and deliver it to their unit or mail it with a postmark dated on or before the 90th day, will automatically be covered under option C. 

2.Public Law 92-425, the SBP, enacted 21 September 1972, provided that militarymembers on active duty could elect to have their retired pay reduced to provide for anannuity after death to surviving dependents.  An election, once made, was irrevocableexcept in certain circumstances.  The election must be made before the effective date ofretirement or coverage defaults to automatic spouse coverage.

3.Public Law 105-85, enacted 18 November 1997, established the option to terminateSBP participation.  Retirees have a 1-year period beginning on the second anniversaryof the date on which their retired pay started to withdraw from SBP (cancellation ortermination from the SBP begins in the 25th month through the 36th month or the thirdyear of retirement).  The spouse's concurrence is required.  The effective date oftermination is the first day of the first calendar month following the month in which theelection is received by the Secretary concerned.  No premiums will be refunded to thosewho opt to disenroll.

4.Title 10, U.S. Code, section 1448, requires spousal concurrence in any SBP electionnot to participate in SBP, to provide an annuity for a spouse at less than the maximumlevel, or to provide an annuity for a dependent child but not for the person's spouse.

5.The DFAS website states:

a.retirees who meet one of the following two criteria are eligible to withdraw fromthe SBP: 

(1)the retiree has had a service-connected disability rated by the Department ofVeterans Affairs (VA) as totally disabled for a continuous period of 10 or more years; or 

(2)the retiree has had a total disability rating from the VA for at least5 continuous years immediately following the last date of active duty. 

b.Withdrawal from SBP coverage due to a qualifying VA disability, sometimesreferred to as discontinuation based on disability, is different than terminating SBP coverage between the 25th and 36th month of retirement. 

FACTS: 

1.The applicant states he submitted his DD Form 2656 to opt out of the SBP within the90-day window.  He should not have been automatically enrolled in the SBP.  He wasunaware of the requirement to submit the paperwork prior to retirement because thepersonnel assigned to assist him didn't tell him about this before the medical boardprocessed him out of the military.

2.His records show he enlisted in the U.S. Army Reserve on 27 January 1999.

3.U.S. Army Physical Disability Agency Order D 233-11, dated 21 August 2017, retiredhim by reason of permanent physical disability and placed him on the Retired Listeffective 25 September 2017.  (Note:  this order incorrectly shows he completed27 years, 7 months, and 29 days for basic pay purposes.)

4.He provided his DD Form 2656, dated 6 December 2017, which shows in:

a.Section IX (SBP Election), block 26g (Beneficiary Category(ies)), he elected notto participate in the SBP; 

b.Section IX, block 27 (Level of Coverage), he did not elect a level of coverage;and 

c.Section XII (SPB Spouse Concurrence), a signature is required when themember is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage.  Block 32a is signed by his spouse and her signature was notarized on 6 December 2017. 

5.His DA Form 5016 (Chronological Statement of Retirement Points), dated 10 March2020, shows his pay entry basic date as 27 January 1999.  He completed 18 years and8 days of qualifying service for retired pay at age 60.  He did not complete 20 years ofqualifying service for retirement purposes and he was not eligible for receipt of aNotification of Eligibility for Retired Pay at Age 60 (20-year letter).

6.The applicant's SBP termination window is from October 2019 through September2020.  A DD Form 2656-2 (SBP Termination Request) is used to withdraw from theSBP.  This form must be mailed or faxed to the Defense Finance and AccountingService Retired and Annuitant Pay Section.

BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found the relief was warranted.  The applicant’s contentions, his military record, and regulatory guidance were carefully considered.  Public law provides a suspense for changing a SBP election after retired pay is started.  The Board agreed the record should be corrected to show he submitted a written and timely request to DFAS to decline SBP coverage with spousal concurrence.  Such relief should result in the repayment of any previously paid SBP premiums.     

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: XXX :XXX :XXX 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 he timely submitted and properly declined the Survivor Benefit Plan (SBP), with proper spousalconcurrence, and his 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.     
X CHAIRPERSON

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. 

ADMINISTRATIVE NOTE(S):  Public Law 92-425 provides that the election must be made before the effective date of retirement or coverage defaults to automatic spouse coverage.  The 90-day SBP election window referenced by the applicant applies to Reserve Component members who received their Notification of Eligibility for Retired Pay at Age 60. 

//NOTHING FOLLOWS//