ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 February 2022 DOCKET NUMBER: AR20210012177 APPLICANT REQUESTS: * correction of her records to show she elected not to participate in the Survivor Benefit Plan (SBP) * refund of all SBP premiums erroneously withheld from her retired pay 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) * DD Form 2656 (Data for Retired Personnel) (Extract), 10 July 2018 * Retiree Account Statement, effective 23 March 2021 FACTS: 1. The applicant states her DD Form 2656 (Data for Payment of Retired Personnel) shows she elected to not participate in the SBP. Prior to her retirement from the U.S. Army Reserve, her spouse signed the Spouse SBP Concurrence block. When she spoke with a representative from the Defense Finance and Accounting Service, she was advised that she had been automatically enrolled. This is an erroneous action that should be stopped and the premiums refunded. 2. On 21 March 2001, she was serving as member of a U.S. Army Reserve troop program unit in the rank/grade of sergeant first class/E-7. 3. The U.S. Army Reserve Personnel Command memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 21 March 2001, advised her that she completed the required years of service and was eligible for retired pay upon application at age 60. She was further advised she was eligible to participate in the Reserve Component SBP (RCSBP), but if she does not submit her election on a DD Form 1883 (SBP Election Certificate) within 90 calendar days, she will not be entitled to SBP coverage until she applies for retired pay at age 60. If she does not elect coverage and should die before age 60, her survivors will not be entitled to benefits. 4. Her DD Form 1883, 22 April 2001, shows in: * item 6 (Are you married?) – is marked "Yes" * item 7 (Do you have dependent children?) – is marked "Yes" * item 9c (Election Status) – is marked "Option A (Defer)" * Section IV (Signatures) – she and her spouse signed the form on 22 April 2001 5. U.S. Army Human Resources Command Orders C-05-41-141, 10 May 2004, assigned her to the Retired Reserve effective 3 May 2004. 6. Her DD Form 2656 (Data for Payment of Retired Personnel), 10 July 2018, shows in: * item 4 (Retirement/Transfer Date) – 11 April 2019 * item 33 (SBP Election – Reserve Component Only) – is marked "Option A – Previously declined to make an election until eligible to receive retired pay)" * item 34 (SBP Beneficiary Categories) –"I Elect Not to Participate in SBP" is marked and "I have eligible dependents under the plan" is marked "No" * item 39c (Member – Date Signed) – 1 June 2018 * item 41c (Spouse SBP Concurrence – Date Signed) – "INVALID" * item 42 (Notary Witness – Date Signed) – 10 July 2018 7. U.S. Army Human Resources Command Orders C01-990408, 15 January 2019, retired her and placed her on the Retired List in the rank/grade of sergeant first class/ E-7 effective 11 April 2019. 8. On 11 April 2019, she reached age 60. Her Retiree Account Statement, effective 23 March 2021, shows "Spouse Only" SBP coverage. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was warranted. The applicant's contentions, her military records, and regulatory guidance were carefully considered. Board members noted that in 2001, applicant opted to defer her SBP election until she became eligible for retired pay at age 60. Her spouse concurred. When she was preparing to retire, she completed a DD Form 2656 and declined SBP. She signed the form on 1 June 2018. Her spouse signed the form on 10 July 2018 according to the notary. Assuming the form was submitted prior to retirement on 11 April 2019, applicant took the proper steps to decline SBP. It is unclear why the word “INVALID” is typed into the spouse’s Date Signed block instead of the date. However, it is clear from the notarization that the spouse signed after applicant’s signature and before receipt of retired pay. Board members found the applicant followed the proper steps in declining SBP and an error occurred when applicant was auto-enrolled, and votes to grant relief. 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 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 timely declined SBP with spousal concurrence and the Army accepted and processed the election prior to the receipt of retired pay on 11 April 2019 * reimbursing the applicant for any premiums that have been withheld, as a result of this correction 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 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60 (and able to participate in the SBP) 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 SBP 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; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay (costs for option C being the more expensive). Once a member elects either option B or C in any category of coverage, that election is 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 RCSBP – it automatically converts to SBP coverage. If RCSBP option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. 2. 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. The spouse's concurrence is required. No premiums will be refunded to those who opt for disenrollment. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012177 1 1