IN THE CASE OF: BOARD DATE: 31 January 2022 DOCKET NUMBER: AR20210007923 APPLICANT REQUESTS: correction of her records to reflect her Reserve Component Survivor Benefit Plan (RCSBP) election as option A instead of option C. 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) * Self-authored Brief, undated, with enclosures * Enclosure 1 – DD Form 2656-5 (RCSBP Election Certificate), 29 March 2021 * Enclosure 2 – Email from the U.S. Army Reserve Retirement Services Office (RSO), 88th Readiness Division, Fort McCoy, WI, 22 February 2021 * Enclosure 3 – DA Form 4856 (Developmental Counseling Form), 19 March 2021 * Enclosure 4 – 88th Readiness Division Memorandum for Record (MFR) (RC-SBP Counseling Statement), 29 March 2021 * Enclosure 5 – Photograph of Envelope with Notation "mailed 29 March 2021" * Enclosure 6 – Email from Gray Area Retirements Branch, U.S. Army Human Resources Command (HRC), 31 March 2021 FACTS: 1. The applicant states she was unfairly defaulted to option C of the RCSBP and was not provided the proper amount of time to elect option A. She did not receive her 20-year letter (notification of eligibility (NOE)) in time to meet the 90-day election period. She did not receive the information packet regarding the RCSBP that she was supposed to receive. Her counseling regarding the RCSBP was not conducted until February 2021, well after the 90-day election period had expired. The counseling stated she would have 90 days from acknowledgement of receipt of the NOE. She made her election on 28 March 2021, which was less than 90 days from acknowledging receipt of the NOE. The coronavirus disease pandemic has resulted in delays in the mail and probably resulted in the 88th Readiness Division's delayed counseling regarding her RCSBP options until after the election period had expired. While she understands these delays, she respectfully requests the benefit of an extended election period due to the delays (see self-authored brief). 2. The applicant was appointed as a Reserve commissioned officer of the Army on 7 January 2000 in the Judge Advocate General Corps with concurrent orders to active duty. She was subsequently appointed as a Regular Army commissioned officer. 3. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was honorably discharged from the Regular Army on 18 April 2011 after completing 11 years, 2 months, and 25 days of net active service. 4. The HRC memorandum (Appointment as a Reserve Commissioned Officer of the Army under Title 10, U.S. Code, Section 12201 and 12203), 19 April 2011, shows she was reappointed as a Reserve commissioned officer for an indefinite term effective 19 April 2011. 5. She was promoted to the rank/grade of colonel/O-6 effective 19 June 2019. 6. The HRC memorandum (Notification of Eligibility for Retired Pay at Non-Regular Retirement (20-Year Letter), 18 June 2020, notified her that having completed the required years of qualifying Reserve service, she was eligible for retired pay upon application at age 60 in accordance with statutory guidance. Paragraph 7 states: Public Law 95-397, 30 Sep 78 [30 September 1978], 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: https://soldierforlife.army.mil/retirement 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 Child(ren) coverage based on Full Retired Pay, UNLESS spouse concurrence is provided (and witnessed by a notary [public]) to allow one of the following elections: a. 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. b. Option B (enroll now with the death annuity paid to your designated beneficiary when you would have been age 60, if you die before age 60). c. Option C (enroll with the death annuity paid immediately upon notification of your death, regardless of your age). You must notify this command, using the DD Form 2656-5, RCSBP Election Certificate, of your decision within 90 days of the date of this memorandum, a copy of DD Form 2656-5 and other RCSBP pertinent forms are provided with the enclosed RCSBP booklet. It is strongly recommended that regardless of your RCSBP election, you complete DD Form 2656-5 and return the form in a timely manner so the Army has a record of your designated beneficiaries by name and social security number. If you have been mobilized and deployed OCONUS [outside the continental United States], you or your spouse may notify this command in writing, of your mobilized status and request a deferment of the RCSBP election requirement. Upon receipt of the written request, accompanied by the mobilization/ active duty OCONUS deployment order, you will be granted a deferment. The deferment will end 90 days after termination of your mobilization. At that time, you must have notified this command of your election. Failure to do so will result in automatic coverage for spouse and child(ren) under option C. The cost for participation in the RCSBP will commence upon your receipt of retired pay. Detailed information concerning the RCSBP program and its cost is enclosed. ANY RCSBP ELECTION OF A MARRIED SOLDIER THAT DOES NOT PROVIDE FULL COVERAGE FOR SPOUSE UNDER OPTION C REQUIRES SIGNATURE OF THE SPOUSE AND SOLDIER WITNESSED BEFORE AND BY A NOTARY PUBLIC. FAILURE TO MEET THIS REQUIREMENT WILL RESULT IN FULL COVERAGE FOR SPOUSE AND CHILD(REN) UNDER OPTION C. You may contact your local retirement service office at https://soldiersforlife.army.mil/retirement for assistance. 7. She provided an email from the 88th Readiness Command RSO (Receipt of 20-Year Letter), 22 February 2021, stating she had received an initial notification of her 20-year letter (NOE) with three attachments: (a) FY21 Pre-Retirement Training Schedule; (2) RCSBP Counseling (DA Form 4856); and (3) RCSBP MFR (RC-SBP Counseling Statement). 8. Her DA Form 4856, 19 March 2021, shows the 88th Readiness Command RSO counseled her regarding her receipt of the NOE for retired pay at Non-Regular retirement (20-year letter). a. A key point of discussion noted: "If you did not make an election within 90 days of the receipt of your NOE for Retired Pay at Age 60 (20 or 15 Year letter) by law you will automatically receive Option C, immediate coverage, based on full retired pay for spouse, spouse and child, or child only depending on the dependents you had at the time of your NOE for Retired Pay at Age 60 (20 or 15 Year letter)." b. This form further instructed her to read and sign the RCSBP counseling statement enclosure MFR, as well as this form, and to schedule and register for a pre- retirement briefing. c. She agreed and digitally signed the counseling statement on 26 March 2021; the RSO digitally signed the counseling statement on 27 March 2021. She noted the following statement indicating her agreement by digital signature: I acknowledge receipt of my NOE (20 year letter) on 22 February 2021. I do not acknowledge receipt on the date printed on the actual letter as I did not receive it at that time. The initial notification email was not sent by the Army Reserve retirement services office until 22 February 2021. It contained the briefing on the RC-SBP, the MFR on RC-SBP and this counseling statement on the RC-SBP. Therefore, I acknowledge that I have 90 days from 22 Feb 2021 22 February 2021] to request Option A for the RCSBP as shown on the attached DA [Form] 2656--5. I hereby request Option A. 9. The 88th Readiness MFR (RC-SBP Counseling Statement), 19 March 2021, states she is eligible for Reserve retirement benefits and informs her of the available RCSBP options. She signed the MFR on 19 March 2021 with a date for the RSO of 27 March 2021 (unsigned). 10. Her DD Form 2656-5 shows in: a. Section II (Marital/Dependency Status), she placed an "X" in the block "Are you married?" and placed an "X" in the block "Do you have any dependent children?"; b. Section III (Spouse/Dependent Child(ren) Information), block 9a, she listed as her spouse with a date of marriage in 2006; and in block 11 (Dependent Children), she listed (son), (son), and (son); c. Section IV (Coverage), block 12 (Options), she placed an "X" in the block "Option A. I decline to make an election until age 60"; d. Section VII (Remarks), block 16 (Use this section to continue an item or make additional comments), she wrote: While my 20 year letter was dated in June 2020, I did not receive it in time to stop the automatic default for option c. This was probably due to COVID-19 [coronavirus disease-19]. I just received my initial email counseling from the 88th Readiness Division on 22 February 2021. So based on my acknowledgment of receipt of the letter on 22 February 2021, I am still within the 90 day window to elect Option A. The law states that it is of 90 days from receipt, not 90 days from the mailing date. Please accept my selection for Option A. If you are unable, please let me know so that I can appeal to the ABCMR [Army Board for Correction of Military Records] to make this change to my records. Thank you.? e. Section VIII (Member Signature), she signed the form on 28 March 2021 and her signature was witnessed on the same date by a witness in ; and f. Section IX (Spouse Concurrence), her spouse signed the form on 29 March 2021 and his signature was witness and notarized by a notary public on the same date. 11. The email from the HRC Gray Area Retirements Branch (Receipt of 20 Year Letter), 31 March 2021, responded to her inquiry regarding her RCSBP option. The email noted she had defaulted to option C on the 91st day after the date of the 20-year letter (NOE) since her documents were not received within 90 days. 12. She provided a photograph of an envelope addressed to HRC with a notation in red stating: "Mailed 29 March 2021." The envelope is not postmarked. 13. The applicant is currently serving at the U.S. Military Academy in a USAR status. 14. On 18 January 2022, a DFAS pay technician stated the DFAS database does not contain any paperwork or show the applicant as being on the retired rolls. 15. The applicant will reach age 60 in 2033. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered applicant’s contentions, military record, legal review and regulatory guidance. Based on the preponderance of evidence available for review the Board determined the evidence presented sufficient to warrant a recommendation for relief. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. ? 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 the applicant elected, with spousal concurrence, Option A RCSBP within 90 days of receipt of the 20 year letter. X 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): "Gray area" retirees are members who served in the National Guard or Reserve, are qualified for retired pay, and have "retired" from their service (stopped drilling), but are not yet at the age where they can start receiving retired pay. The time between their "retirement" from the service and the date when they are eligible to begin receiving retired pay is the "gray area." The "gray area" applies even if the member is in the Retired Reserve. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the Survivor Benefit Plan (SBP). The SBP 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. Elections are made by category, not by name. The election must be made before the effective date of retirement or coverage defaults to automatic spouse coverage. Since its creation, it has been subjected to a number of substantial legislative changes. 2. Public Law 95-397, enacted 30 September 1978, established the RCSBP. The RCSBP provided a way for Reserve Component members who qualified for Non- Regular (Reserve) retirement but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60. A member must have made the election within 90 days of receiving the NOE to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP. Once a member elects either option B or C in any category of coverage, that election becomes irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in the RCSBP; the options automatically convert to SBP coverage. Three options are available: * option A – elect to decline enrollment and choose at age 60 whether to start SBP participation * option B – elect that a beneficiary receive an annuity if the member dies before age 60, but delay payment until the date of the member's 60th birthday * option C – elect that a beneficiary receive an annuity immediately upon the member's death if before age 60 3. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount. 4. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member 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 upon receipt of the 20-year letter results in the default election of option C. 5. Army Regulation 600-8-7 (Retirement Services Program), paragraph 4-6, states that between the receipt of the NOE (20-year letter) and 60 days after receipt of the 20-year letter, RC Soldiers and spouses should be counseled on the RCSBP, to include categories available under Title 10, U.S. Code, section 1448(a), and the effects of such elections, in accordance with Title 10, U.S. Code, section 1455(b)(1). After receiving the NOE, RC Soldiers have 90 days to make their RCSBP elections using a DD Form 2656-5. //NOTHING FOLLOWS//