ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 January 2020 DOCKET NUMBER: AR20190008989 APPLICANT REQUESTS: revocation of Reserve Survivor Benefit Plan (RCRCSBP) participation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self Authored Letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 states and provides through his self authored letter that he would like his records corrected to reflect declination of RCSBP participation. He further states that he was not aware of his eligibility to receive retirement pay until 21 November 2018, although he officially retired on 21 December 1990. His pay records are currently reflecting RCSBP deductions based on a 2013 date rather than 2019, the date that he filed for retirement. He also states that he departed the military in December of 1990 after serving 18.5 years thereby prohibiting him from receiving retirement payments. He believed this for 29 years until 21 November 2018 when he submitted an application for retirement. All documents being provided to him are indicative of retirement pay eligibility in 2013. From what he can tell, his RCSBP deduction is based upon this date. He was never afforded the opportunity to accept or decline RCSBP participation. In November 2018, when he filed for retirement, he elected on the DD Form 2656-2 to not participate in the RCSBP. 3. The applicant does not provide any additional documentation to support his contention. 4. A review of the applicant’s service records reflects the following on: * 22 September 1972 – he was inducted into the Army and served 4 months and 13 days prior to transferring into the Army National Guard (ARNG) on 1 February 1973 * 21 December 1990 (NGB Form 22) - he was determined to be medically unfit for retention standards and therefore separated after serving a total of 18 years 5 months and 22 days * 25 January 1991 (Order# 017-003) – his order was amended from uncharacterized discharge to honorable on his NGB Form 55 * 28 February 1991 – his ARNG Retirement Points History Statement reflected 18 years 5 months and 22 days of total creditable service * 30 October 2018 – a 15 year letter was generated from the ARNG wherein paragraph 5 indicates his RCSBP eligibility information and election rights * 3 December 2018 – he completed DD Form 2656 wherein he elected to decline participation in the RCSBP; his spouse concurred 5. See applicable guidance under REFERENCES below. BOARD DISCUSSION: The Board agreed that, given the fact that his spouse concurred with his election to decline the RCSBP within 90 days of being issued his 15 year letter, he made a good faith attempt to act in a timely manner. By a preponderance of the evidence the Board determined the applicant's record should be corrected to show he made a timely election to decline participation in the SBP, and any monies he has paid toward SBP premiums should be returned to him. 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 he made a timely election to decline participation in the SBP, and any monies he has paid toward SBP premiums should be returned to him. 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Public Law 95-397, the Reserve Component RCSBP (RCRCSBP), 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. 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 RCSBP. 3. Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers. It explains that retired pay is pay granted soldiers and former Reserve components soldiers who have completed 20 or more years of qualifying service and have attained age 60. Orders will be issued announcing the effective date eligible persons are entitled to retired pay. Chapter 3 describes the RCRCSBP. It clearly states that members who receive their 20-year letter have 90 days to elect to participate in the RCRCSBP and return the DD Form 1883. Should they fail to do so, they may subsequently elect coverage under the RCSBP with their application for retired pay upon reaching age 60. ABCMR Record of Proceedings (cont) AR20190008989 3 1