IN THE CASE OF: BOARD DATE: 2 March 2020 DOCKET NUMBER: AR20180009963 APPLICANT REQUESTS: Remission of the Former Service member’s (FSM’s) Reserve Component Survivor Benefit Plan (RCSBP) debt of $14,188.96. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s Spouse Statement * DD Form 2656-5 RCSBP Election Certificate * NGB Form 22 (Report of Separation and Record of Service) * 4 Defense Finance and Accounting Service (DFAS) Letters FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant’s spouse states she and the FSM did not elect to participate in the SBP program. The FSM had a traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD). He was unable to maintain any job due to his injuries. They lost their house to foreclosure because they couldn’t pay the house note. The FSM was deemed 100% total and permanently disabled September 2010. The first DD Form 2656 (Data for R) they completed was the wrong “version”, months later they were notified and they completed a new form. Again they elected not to enroll in SBP. This was later denied because they had now missed the enrollment window. She states for months even years they would send notes and write “We did not elect this coverage” on the bills and sent them back to DFAS. On 6 February 2018, they were notified by DFAS that SBP payments would start being taken from his Combat Related Special Compensation (CRSC). The DFAS letter also stated they were responsible for prior months’ worth of payments totaling $14,188.96 plus interest. They completed a DD Form 2656-2 to have future SBP payments stopped. 3. The applicant provides: a. DD Form 2656-5 dated 20 May 2011 showed the FSM was married with dependent children. He declined to make an election until age 60. The applicant and her husband signed the form. It was notarized. b. NGB Form 22 dated 28 November 2011, he was honorably placed on the permanent disability retired list and transferred to the Retired Reserve Fort Knox, Kentucky. He had 20 years, 2 months, and 2 days of total service for retired pay. c. 15 October 2014, DFAS letter regarding income withholding for support from the state of for child support enforcement for a the total amount to withhold of $577.50 per month. d. The DFAS letter dated 6 February 2018 informed the FSM that starting in April of 2018, DFAS will begin deducting your SBP premiums from his CRSC. They normally deduct SBP premiums from retired pay. However, a military retiree must waive a portion of their gross retired pay, dollar for dollar, by the amount of their entitlement to Department of Veterans Affairs (VA) disability compensation; this is known as the VA Waiver. Since the FSM’s VA disability compensation was greater than his gross military retired pay, his military retired pay account was suspended. As a result, they set up a direct remittance account for him to pay his monthly SBP premiums. They would begin deducting his SBP premiums from his CRSC payment each month, instead of him paying his premiums directly. The monthly deduction would begin with his premium due in April of 2018, which would be deducted from his CRSC payment dated 1 May 2018. The FSM would continue to receive an SBP premium notification which would show that DFAS deducted your monthly premium from his CRSC pay. He was still responsible for paying the amount due from prior months and interest charges. As of 31 January 2018, his total amount due was $14,188.96. e. 28 February 2018, the DFAS letter stated since they did not have a SBP election on file he was automatically enrolled at the full base amount. A member awarded military retired pay and participating in SBP shall, during any period in which he/she was not entitled to retired pay, deposit into the Treasury of the United States the amount that would otherwise have been deducted from his pay for that period. Accounts become delinquent if they did not receive payments on or before the fifteenth (15th) day of the following month. Unpaid premiums are subject to interest at one-half of one percent compounded monthly. If he wished to contest his original SBP election, he must file for administrative correction through his branch of service. f. 14 April 2018, DFAS letter stated they had been served with a modified income withholding order for child and/or spousal support from,. They had authorized a change in the deduction from the FSM’s pay to comply with the order. Payments of $415.13 not to exceed 50.00 percent of his disposable earnings would be remitted to the department of social services. Payments would continue until further order of the courts. 4. A review of the FSM’s service record shows: a. His initial enlistment contract is not available for review. His DA Form 2-1 (Personnel Qualification Record) item 34 Record of Assignments effective date the FSM enlisted in the Regular Army on 20 January 1984. He has Army National Guard Service from 22 March 1988 to 21 March 1995. b. DD Form’s 214 (Certificate of Release or Discharge from Active Duty) show he was honorably released from active duty on: * 20 February 1988; he completed 4 years of active service and transferred to St Louis, Missouri * 18 July 1990; he completed 11 months, and 17 days of active service and transferred to Baton Rouge, LA * 22 Jul 1992; he completed 3 months, and 4 days active service and transferred to Baton Rouge, LA c. 21 March 1995, National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he was honorably transferred to USAR control Group St Louis, MO, for expiration of service. d. 6 May 1995, Orders 087-028 the FSM was honorably discharged from the ARNG and as a Reserve of the Army effective date 21 March 1995. e. 27 January 2001, DD Form 4 (Enlistment/Reenlistment Document) he enlisted in the Louisiana ARNG (LAARNG). f. 21 September 2006, DD Form 214 shows he was honorably released from active duty. He completed 1 year, 4 months, and 15 days active service. He was transferred to. g. 30 September 2006, DD form 214 shows he was honorably released from active duty for special work. He completed 6 months, and 25 days of active service. He was transferred. h. 2 April 2009, Department of Veterans Affairs (DVA) rating decision letter stated the FSM’s request to reopen his claim was received and based on a review of the evidence the decision was made for service connection of tinnitus (10%) and PTSD (30%) service connection was granted. i. 2 November 2009, DVA rating decision letter stated the FSM filed a claim for increased evaluation and based on a review PTSD rating of 30% was increased to 70%. A decision on entitlement to compensation for traumatic brain injury was deferred and the entitlement to individual unemployability was deferred. j. 2 February 2010, the Notification of eligibility for Retired Pay at Age 60 (Twenty Year Letter) notified the FSM that having completed the required years of service, he would be eligible for retired pay upon application at age 60. Public Law 95-397, 30 September 1978, created the RCSBP, in which he was entitled to participate, RCSBP was his sole means of protecting his retired pay entitlement. Public Law 106-398, 30 October 2000, required that upon receipt of the Letter, a qualified Reserve Component member, who was married, would automatically be enrolled in the RCSBP under option C, spouse and Child(ren) coverage based on Full Retired Pay. UNLESS different coverage was selected within 90 days of receipt of the letter. Written spousal concurrence was required in order to decline full and immediate coverage for annuitants. Failure to meet the requirement would result in the retention of full coverage for his spouse and child(ren). k. 1 September 2010, DVA rating decision letter stated the FSM they received a Notice of Disagreement from the FSM about one or more of their earlier decisions. Based on a review the entitlement to individual unemployability was granted effective 8 June 2009. That was considered a full grant of benefits sought on appeal. Service connection for traumatic brain injury was granted with an evaluation of 0% effective 24 September 2009. That was considered a full grant of benefits sought on appeal. Basic eligibility to dependents’ educational assistance was established from 8 June 2009. l. 2 February 2011, ARNG retirement points history statement. Showed 20 years, 2 months, and 2 days of creditable service for retirement pay. m. 7 April 2011, DVA rating decision letter the FSM’s claim for Disability Evaluation System (DES) stated he had been referred to the Physical Evaluation Board (PEB) and that based on a review for DES purposes, a 70% evaluation was proposed for PTSD. The evaluation of PTSD disorder previously evaluated at 70% for DVA benefits was confirmed and continued. n. DD Form 2656-5 dated 20 May 2011 showed the date of marriage to G__, on 21 November 2007. He declined to make an election until age 60. The applicant and her husband signed the form. None of the children are disabled. They listed four children, none of the children are disabled: His DOB is 1 XXX 19XX. He is currently 56 years old. * G_, Date of Birth (5 XXX, 19XX (Spouse) * O__, Date of Birth (DOB) 17 XXX 19XX * G__, DOB 3 XXX 20XX * G__, DOB 6 XXX 19XX * O__, DOB 8 XXX 19XX n. 24 October 2011, Orders D 297-17 the FSM was released from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability. He was placed on the retired list 28 November 2011 in the retired grade of staff sergeant/ E-6. His percentage of disability was 70%. o. 20 May 2011, RCSBP election certificate the FSM elected Option A-He declined to make an election until age 60. The form was signed by the applicant. The form was notarized. p. 7 August 2011 DVA rating decision showed what was subject to compensation- PTSD, tinnitus and traumatic brain injury. q. 18 November 2011, Orders 322-023 the FSM was honorably discharged from the ARNG and assigned to the retired reserve effective date 28 November 2011. r. 10 November 2011, Orders 323-070 amended Orders 322-023 dated 18 November 2011 change effective date from 28 November 27 November 2011. s. 24 November 2011, DD Form 2860 CRSC shows the FSM’s item 13a disability description VA rating-100% Unemployable (TBI, PTSD) and Tinnitus). VA PEB rating- 70% (PTSD). Item 13b All parts are affected by the brain. t. 28 November 2011, NGB Form 22 (Report of Separation and Record of Service) shows he was honorable placed on the permanent disability retired list and transferred to the retired reserve, . He completed 20 years, 2 months, and 2 days of service for retired pay. u. 1 December 2011, the CRSC ineligible letter stated he did not meet the eligibility requirements for CRSC because he was not in a retired status. v. 9 January 2012, the applicant on behalf of her husband, the FSM stated they were reapplying for CRSC because his retired status was not “in the system” when he applied previously. She also stated they did not apply for want the SBP coverage which was a monthly premium of $157.11. w. 9 January 2012, the FSM reapplied for CRSC since although, he was retired the system was not updated. x. 12 January 2012 the CRSC decision letter stated they had reviewed the FSM’s claim for and had approved his claim. A copy of the decision letter would be sent to DFAS for payment calculation and processing. 5. Public Law 95-397, 30 September 1978, created the RCSBP, in which he was entitled to participate, RCSBP was his sole means of protecting his retired pay entitlement. 6. Public Law 106-398, 30 October 2000, required that upon receipt of the Letter, a qualified Reserve Component member, who was married, would automatically be enrolled in the RCSBP under option C, spouse and Child(ren) coverage based on Full Retired Pay. 7. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C. 8. Public Law 95-397, the Reserve Component SBP (RCSBP), enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions, the military service record, and regulatory guidance were carefully considered. Based upon the preponderance of the evidence, and the unique circumstances of the former member’s retirement, the Board agreed that it was through no fault of his that the DD Form 2656-5, dated 20 May 2011, was not properly processed. The Board agreed the record should be corrected to show a written and timely request was submitted to DFAS to decline enrollment and choose at age 60 whether to start SBP participation, in accordance with public law. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX 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: a. The applicant declined to make an SBP election until age 60 on DD Form 2656-5, dated 20 May 2011, both the applicant and his spouse signed. b. DFAS shall remit the Reserve Component Survivor Benefit Plan (RCSBP) debt of $14,188.96. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Department of Defense Financial Management Regulation (DOD FMR) 7000.14-R states, members whose record is corrected to a military disability retirement under the physical disability board process, and who were married on the retirement effective date, will receive automatic full spouse coverage under the SBP, unless the member makes an affirmative election on a DD Form 2656. Premiums are suspended for spouse coverage when there is no longer an eligible beneficiary. 3. Title 10, USC, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child. 4. DFAS website provides the following guidance related to SBP deductions from CRSC. a. The normal method of paying for SBP coverage is by an automatic deduction from your retirement pay. The vast majority of retired members with SBP coverage pay through this means. It is implemented automatically if you elect SBP coverage at the time you retire. b. Beginning with the SBP monthly premiums due in April of 2018, DFAS started deducting SBP recurring monthly premiums from CRSC when retired pay is not sufficient to cover the full amount of the monthly premiums. This new deduction is due to a change in the law which requires DFAS to deduct SBP recurring monthly premiums from CRSC. c. The change in the law only affects SBP recurring monthly premiums, beginning with the monthly premium due in April of 2018. It does not affect past due SBP premium amounts. DFAS is not deducting past due premiums from CRSC pay. Retirees who have past due SBP premiums are still responsible for paying the past due SBP premium amount and any interest accrued through direct remittance. 5. Department of Defense Financial Management Regulation (DODFMR) Volume 7b, states, elections in writing signed by the member, which contain all information necessary for declining coverage, are acceptable. Spousal concurrence is required when the member elects to decline coverage. Once participation is discontinued under this provision, no benefits may be paid in conjunction with the members’ previous participation. No refund of any premiums properly collected will be made. 6. Title 10 United States Code, section 1448a states a participant in the Plan may, subject to the provisions of this section, 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. 7. Department of Defense Financial Management Regulation (DODFMR) Volume 7b, states, an election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse coverage. Spousal concurrence is required when the member elects to decline coverage prior to the first day of eligibility to retired pay. An SBP participant may choose to voluntarily discontinue SBP participation during a 1-year period which begins on the second anniversary of the date of commencement of retired pay. Once participation is discontinued under this provision, no benefits may be paid in conjunction with the members’ previous participation. No refund of any premiums properly collected will be made. 8. Public Law 95-397, the Reserve Component SBP (RCSBP), enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they died before age 60 but delay payment of it until the date of the member’s 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP. 9. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180009963 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1