IN THE CASE OF: BOARD DATE: 29 September 2021 DOCKET NUMBER: AR20200009925 APPLICANT REQUESTS: correction of his records to show he elected Survivor Benefit Plan (SBP) "child only" coverage. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * U.S. Army Human Resources Command Memorandum (Notification of Eligibility for Retired Pay at Non-Regular Retirement (20-Year Letter), 16 January 2014 (page 1 only) * Headquarters, 81st Readiness Division (U.S. Army Reserve), Orders 19-179-00090, 28 June 2019 * DD Form 2656 (Data for Payment of Retired Personnel), 9 September 2019 * Certificate of Trust for the H____ Revocable Trust, 18 June 2020 * DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate), 6 November 2020 FACTS: 1. The applicant states he was deployed when his 20-year letter was prepared. He transferred from Reserve unit to Reserve unit at the needs of the U.S. Army Reserve and continued to serve until 2019. He and his wife carefully made the decision to request coverage for their special needs child only and prepared and initialed a DD Form 2656 in September 2019 after receiving his mandatory retirement orders. He did not have the opportunity to attend any retirement briefings and was not briefed regarding the SBP. 2. His Officer Record Brief shows he was assigned to the 993d Veterinary Medical Detachment Team 2, Denver, CO, effective 10 June 2007. 3. His records do not contain mobilization or deployment orders. 4. On 16 January 2014, he was issued a Notification of Eligibility for Retired Pay at Non-Regular Retirement. The memorandum states, in part: Public Law 95-397, 30 Sep 71 [30 September 1971], created the Reserve Component Survivor Benefit Plan (RCSBP), in which you are now entitled to participate. RCSBP is the sole means of protecting your retired pay entitlement. Before making an election, contact the nearest Retirement Services Office: http://www.annyg1.anny.mH/rso/rso.asp for assistance. Note: Public Law 106-398, 30 Oct 00 [30 October 2000], requires that upon receipt of this letter, a qualified Reserve Component (RC) member who is married will automatically be enrolled in the RCSBP under Option C below, Spouse and Children) coverage based on Full Retired Pay, UNLESS spouse concurrence is provided (and witnessed by a notary) to show one of the following elections: Option A (defer enrollment until age 60 when you apply for retired pay). Under this option, if you die before you are officially retired and in receipt of retired pay, your survivors will not be entitled to any financial benefit based on your retired pay. 5. Headquarters, 88th Regional Support Command, Orders 14-353-00001, 19 December 2014, reassigned him from the 993d Veterinary Medical Detachment Team 2, Aurora, CO, to the 7226th Medical Support Unit, Fort Jackson, SC, effective 19 December 2014. 6. On 27 July 2019, he transferred to the Retired Reserve. 7. On 9 September 2019, he completed a DD Form 2656, showing he is married and elected coverage for his child(ren) only. The DD Form 2656 names his daughter as an insurable interest beneficiary. The form is properly signed, witnessed, and notarized. 8. On 7 November 2019, he completed a DD Form 2656, showing he is married and elected coverage for his child(ren) only. The form is properly signed, witnessed, and notarized. 9. On 18 June 2020, he executed a revocable trust. 10. U.S. Army Human Resources Command Orders C02-0901046, 21 February 2020, as amended by U.S. Army Human Resources Command Orders C02-0901046A01, 9 April 2020, retired him and placed him on the Retired List effective 28 July 2020. 11. On 6 November 2020, he completed DD Form 2656-6 showing he requested to change his coverage to "child only" and named his daughter as the beneficiary. The form was properly signed, witnessed, and notarized. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. Board members noted that there was no error when the applicant was automatically and irrevocably enrolled in full SBP coverage for spouse and children in 2014. However, Board members noted an injustice. The applicant did not make a RCSBP election in 2014 when he was notified he qualified for a non-regular retirement. As a result, he was automatically enrolled in full spouse and children coverage. When he became eligible for retirement pay, he attempted to make a new election with only his disabled daughter as beneficiary. His wife concurred. Since he had already defaulted into full coverage in 2014, his attempt was unsuccessful. The Board agreed the record should be corrected to show the election was made and approved in a timely manner to be in accordance with public law. As a matter of equity, the Board voted to grant relief in the form of showing he elected, with spousal concurrence, child(ren) only coverage in 2014. 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 the applicant timely submitted a Reserve Component Survivor Benefit Plan Election, on 16 January 2014, electing childr(ren) only SBP coverage, and his spouse concurred with his election Showing his election was timely received, accepted, and processed. 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. Army Regulation 135-180 (Retirement for Non-Regular Service) implements statutory authorities governing granting retired pay for Non-Regular service to Soldiers in the Army National Guard, Army National Guard of the United States, and U.S. Army Reserve. Chapter 3 (RCSBP) provides policies 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 and former 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 60 or the date eligible to request retired pay based on reduced eligibility age * Option B (Deferred Annuity) – elect to provide an annuity beginning on the 60th anniversary of birth should the Soldier die before that date or on the date of death should the Soldier die on or after his or her 60th birthday * Option C (Immediate Annuity) – elect to provide an immediate annuity beginning on the day after Soldier's death b. Paragraph 3-2d states all eligible personnel have 90 days from receipt of the Notification 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, Attention: AHRC-PDP-TR, Department 420, 1600 Spearhead Division Avenue, Fort Knox, KY 40122-5402. c. Paragraph 3-3c states Soldiers who are eligible to make an election and do not complete 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 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. The election must be made before the effective date of retirement or coverage defaults to automatic spouse coverage. 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 (cancellation or termination from the SBP begins in the 25th month through the 36th month or the third year of retirement). The spouse's concurrence is required. 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. No premiums will be refunded to those who opt to disenroll. 4. Title 10, U.S. Code, section 1448, requires spousal concurrence in any SBP election not to participate in SBP, to provide an annuity for a spouse at less than the maximum level, 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 from the SBP: (1) the retiree has had a service-connected disability rated by the Department of Veterans 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 least 5 continuous years immediately following the last date of active duty. b. Withdrawal from SBP coverage due to a qualifying VA disability, sometimes referred to as discontinuation based on disability, is different than terminating SBP coverage between the 25th and 36th month of retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009925 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1