IN THE CASE OF: BOARD DATE: 16 June 2020 DOCKET NUMBER: AR20190004939 APPLICANT REQUESTS: * correction of her military records to reflect her decision to defer making an election to participate in the Reserve Component Survivor Benefit Plan (RCSBP) until reaching age 60 * reimbursement of all funds deducted from her retirement pay in arrears APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum for Record – Notification of Eligibility for Retired Pay at Age 60 (Twenty Year) letter dated 21 November 2001 * DD Form 1883 (Survivor Benefit Plan Election Certificate) dated 1 December 2001 * DD Form 2656 (Data for Payment of Retired Personnel) dated 30 October 2017 * Order# 17-306-00020 dated 2 November 2017 * Retiree Account Statements * Defense Finance and Accounting Service (DFAS) letter dated 11 March 2019 FACTS: 1. The applicant states that she received his Notification of Eligibility for Retirement Pay at Age 60 (Twenty Year) letter dated 21 November 2001. Upon receipt she submitted her signed DD Form 1883, with spousal concurrence on 1 December 2001, within the 90 days as required. This document was received by ARPERCEN on 7 December 2001, as date stamped on the document. The letter from DFAS indicates that her 20 year letter was issued on 18 October 2001. She contests that even based upon this date, her submission was within the allotted 90 days. She contacted Retirement Services at Fort McCoy, WI to verify that the dated stamped DD Form 1883 was contained within her records and therefore should be used to verify her election of Option A (Deferment) resulting in no payroll deductions under the RCSBP. Further, there is a child erroneously listed on his Retiree Account Statement with a date of birth that is not consistent with a dependent child of hers. 2. A review of the applicant’s available service records reflects the following: a. On 15 July 1978 she enlisted in the US Army Reserve (USAR) under the Delayed Entry Program. b. On 31 October 1978 she was ordered to active duty. c. On 29 October 1981 she was released from active duty and transferred into the USAR. d. On 14 July 1984 she was discharged from the USAR. e. Following a break in service, she reenlisted in the USAR on 17 October 1985. f. On 21 September 1986 she was ordered to active duty and assessed into the Active Guard Reserve (AGR) program. g. On 17 May 1991 she was released from active duty within the AGR program. h. On 18 September 1998 she was appointed as a warrant officer. i. On 21 November 2001 her Notification of Eligibility for Retirement Pay at Age 60 (Twenty Year) letter was issued. j. On 1 December 2001 she and her spouse completed DD Form 1883 electing Option A (Defer) – indicating that she wanted to defer enrollment in the RCSBP until age 60 when she would be eligible to apply for retired pay. k. On 30 October 2017 she completed DD Form 2656 electing spouse only coverage; declines having dependent children. l. On 2 November 2017 (Order# 17-306-00020) she was released from the USAR and transferred into the Retired Reserve effective 30 November 2017. m. On 15 March 2018 (Order# C03-892164) she was placed on the retired list effective 17 March 2018. 3. The applicant provides the following: a. Memorandum for Record – Notification of Eligibility for Retired Pay at Age 60 (Twenty Year) letter dated 21 November 2001 reflective of her completion of the required years of qualifying service and therefore eligible for retire pay on application at age 60. b. DD Form 1883 (Survivor Benefit Plan Election Certificate) dated 1 December 2001 reflective of her election to defer enrollment in the RCSBP until age 60 when she would be eligible to apply for retired pay. c. DD Form 2656 (Data for Payment of Retired Personnel) dated 30 October 2017 reflective of her election for “Spouse Only” coverage under the SBP. d. Order# 17-306-00020 dated 2 November 2017 reflective of her release from the USAR and transfer into the Retired Reserve effective 30 November 2017. e. Retiree Account Statement dated 29 January 2019 reflective of her “Spouse and Children” coverage under the SBP type. Under SBP Coverage the applicant highlights the date of birth of a child currently considered as covered under the SBP. This date is not consistent with any of the dates reflected on the previously submitted DD Form 1883 and or any dependent of the applicant. The applicant’s youngest dependent wasn’t born until the 26th of the provided month, however based upon the time of entitlement to retirement pay, the child may not qualify as a dependent under the SBP. f. Retiree Account Statement dated 21 February 2019 reflective of her having an SBP debt. The current deduction amount is $537.00, with a debt balance of $704.76. g. Defense Finance and Accounting Service (DFAS) letter dated 11 March 2019 reflective of their advisement to the applicant that as of that date, their records did not reflect a valid RCSBP election form on file for her. Further stated is that her 20 year letter was issued on 18 October 2001. They did not receive an election from her within 90 days. 4. See all applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is warranted. 2. The Board noted that the applicant received the 20-year letter, dated 21 November 2001, and returned the required DD Form 1883 (Survivor Benefit Plan Election Certificate, Dec 76 edition) in December 2001, which appeared to have been received on 7 December 2001, within the 90-day receipt window required for election. The applicant checked Option A (Defer) and her spouse signed the form in accordance with the instructions on the form. Their signatures were verified by a witness signature. As such, the applicant should not have been charged the Reserve Component Premium. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 that the applicant submitted DD Form 1883 (Survivor Benefit Plan Election Certificate), signed 1 December 2001, which was received on 7 December 2001, electing Option A (Defer), in compliance with regulation and within the one year submission requirement timeframe. Accordingly, the applicant should be reimbursed for any payment collections made contrary to this election. 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 95-397, the Reserve Component RCSBP (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 RCSBP 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. Married Soldiers may not decline, without the written, notarized concurrence of their spouses, to participate in SBP, to provide an annuity for the Soldier’s spouse at less than the maximum level, or to provide an annuity for a de- pendent child but not for their spouses. By law, married Soldiers who fail to provide written spouse concurrence or an approved waiver of same before date of retirement will be enrolled in full spouse SBP or, if any type of child/children coverage is elected, full spouse and child/children SBP. Reservist on active duty are under the provisions of active duty SBP. 2. Title 10 USC 1448 states that a person who is eligible to participate in the plan under paragraph and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects with his spouse's concurrence, if required, not to participate in the plan before the first day for which he is eligible for that pay. By law, married Soldiers who fail to provide written spouse concurrence or an approved waiver of same before date of retirement will be enrolled in full spouse SBP or, if any type of child/children coverage is elected, full spouse and child/children SBP. Title 10, USC, section 1448(a)(4) states that SBP elections are irrevocable if not revoked before the date on which the member first becomes entitled to retired pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190004939 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1