ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 






IN THE CASE OF: BOARD DATE: 8 December 2021 DOCKET NUMBER: AR20210011065


APPLICANT REQUESTS: correction of his records to show he elected Reserve Component (RC) Survivor Benefit Plan (SBP) spouse coverage at the time of his remarriage. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record under the Provisionsof Title 10, U.S. Code, Section 1552)

.Marriage Register, 18 November 2005

.State Judicial Circuit Court Final Decree Changing the Name of an Adult,17 March 2006



FACTS: 







1.The applicant states that at the time of his initial RCSBP election in 2003, he was not married. In 2005, he remarried and changed all appropriate documents within the Defense Enrollment Eligibility Reporting System while he was still a traditional member of the U.S. Army Reserve. He was never informed that he also needed to contact the Defense Finance and Accounting Service (DFAS) within 1 year to update his RCSBP election. When he spoke with a DFAS representative, he was advised that DFAS will not change the election to spouse only. He was a "gray area" retiree and until he received retirement information from DFAS, he was unaware of this requirement and believes it is unfair to his spouse.2.On 28 February 2000, the applicant was serving as a member of the U.S. Army Reserve.3.On 29 April 2002, the State Judicial Circuit Court ordered a Final Judgment and Decree of Divorce from his spouse K____. The divorce decree makes no mention of the RCSBP.4.The memorandum from the U.S. Army Reserve Personnel Command (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 22 May 2003, notified him that he had completed the required years of qualifying service and was eligible for retired pay
upon application at age 60 in accordance with Title 10, U.S. Code, chapter 1223. He was further advised to notify his command using a DD Form 2656-5 (RCSBP Election Certificate) of his RCSBP election with 90 days of the date of the memorandum. 





































5.His DD Form 2656-5 (RCSBP Election Certificate), 9 July 2003, shows in:•item 7 (Are you married?) –"No"•item 8 (Do you have dependent children?) –"Yes"•item 11 (Dependent Children) –the names of his children•item 12 (Options) –"Option C (Immediate Annuity)"•item 13 (Type of Coverage) –"Child(ren) only"•item 14 (Level of Coverage) –"Full Retired Pay"•item 15 (Supplemental SBP Coverage) –"I decline supplemental coverage for my spouse/former spouse"6.On 18 December 2005, the applicant and S____ married.7.U.S. Army Human Resources Command (HRC) Orders B-01-600603, 19 January 2006, promoted him to the rank/grade of lieutenant colonel/O-5 effective 30 December 2005.8.Headquarters, 81st Regional Support Command, Orders 12-170-00027, 18 June 2012, assigned him to the Retired Reserve effective 1 July 2012.9.His DD Form 2656-6 (SBP Plan Election Change Certificate), 1 April 2019, shows in:•section II (Current Coverage) – "Child Only"•section III (Conditions that Trigger Eligibility to Change Coverage) – "Marriage"•section IV (Requested Change to Coverage) – "Spouse Only"•section V (Level of Coverage) – "Full Retired Pay"10.On 18 July 2019, he requested assistance from HRC to update his SBP. His letter stated, in part, that at the time of initially completing his RCSBP election, he was told he would have an opportunity to update his SBP coverage prior to receiving retired pay. He updated all information regarding the life event of his remarriage in all the personnel systems as required by the U.S. Army Reserve. However, he was never advised to review or update his SBP. Based on his previous advisement, he understood he would have the opportunity to update his election at the time of retirement and was unaware of the 1-year time limit. This predicament is unfair to his spouse and would financially burden her at the time of his passing. As a result, he requests a one-time exception to the SBP rules to add spouse coverage.

11.HRC Orders C09-099142, 29 September 2020, retired him and placed him on theRetired List in the rank/grade of lieutenant colonel/O-5 effective 15 January 2021.

12.His DD Form 2656-6 (SBP Plan Election Change Certificate), 7 February 2021,shows in:

.section II (Current Coverage) – "Child Only"

.section III (Conditions that Trigger Eligibility to Change Coverage) –"Remarriage"

.section IV (Requested Change to Coverage) – "Spouse Only"

.section V (Level of Coverage) – "Full Retired Pay"



13.He reached age 60 in July 2021.

14.The email from the DFAS Senior Ombudsman (Reply: ABCMR Verification),23 November 2021, states DFAS did not receive a timely election, so he was enrolled inautomatic coverage for children only. As stated in his 20-year letter, he had 90 days tomake an RCSPB election. His request to add his spouse was outside the 1-yeareligibility window.

15.“Gray area" retirees are members who served in the National Guard or Reserve, arequalified for retired pay, and have retired from their service (stopped drilling), but are notyet at the age where they can start receiving retired pay. The time between theirretirement from the service and the date when they are eligible to begin receiving retiredpay is the "gray area." The "gray area" applies even if the member is in the RetiredReserve.


BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, regulatory guidance and public law.  The Board considered the applicant’s statement, his military service record and documents provided by the applicant.  The Board determined when the applicant received his  
notification of eligibility for Retired Pay at Age 60 (20-Year Letter)), 22 May 2003, that notified him he had completed the required years of qualifying service and was eligible for retired pay upon application at age 60, he was single.  The record shows the applicant was married in 2005, two years later.  The Board concluded the record should be corrected to show the election for spouse only was made and approved in a timely manner to be in accordance with public law.  Therefore, the Board found sufficient evidence to grant relief.   
BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

XXX XXX XX 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 changed his RCSBP election from child only to spouse on18 December 2005 and the request was received and processed by the appropriate office in a timely manner. 


XCHAIRPERSON

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):   N/a 


REFERENCES: 

1.Title 10, U.S. Code, section 1448, provides the general rules for participation in theSBP. A person who does not have an eligible spouse beneficiary under the plan andmarries/remarries may elect to provide a level of coverage within 1 year of the marriage/remarriage.

2.Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way forthose who had qualified for Reserve retirement but were not yet age 60 (and able toparticipate in the SBP), to provide an annuity for their survivors should they die beforereaching age 60. Three options are available: (A) elect to decline enrollment andchoose at age 60 whether to start SBP participation; (B) elect that a beneficiary receivean annuity if they die before age 60 but delay payment of it until the date of themember's 60th birthday; (C) elect that a beneficiary receive an annuity immediatelyupon their death if before age 60. If death does not occur before age 60, the RCSBPcosts for options B and C are deducted from the member's retired pay (costs foroption C being the more expensive). Once a member elects either option B or C in anycategory of coverage, that election is irrevocable. Option B and C participants do notmake a new SBP election at age 60. They cannot cancel SBP participation or changeoptions they had in the RCSBP – it automatically converts to SBP coverage. If RCSBPoption B or C is elected, there is a Reservist Portion cost added to the basic cost of theSBP to cover the additional benefit and assured protection should the member die priorto age 60.

3.Public Law 108-375, enacted 28 October 2004, established an SBP open enrollmentseason from 1 October 2005 through 30 September 2006. Congress has notestablished an SBP open enrollment season since that time.

//NOTHING FOLLOWS//