IN THE CASE OF: 

		BOARD DATE: 31 January 2022

		DOCKET NUMBER: AR20210013365


APPLICANT REQUESTS: in effect:

*	termination of his Reserve Component Survivor Benefit Plan (RCSBP) coverage
*	reimbursement of SBP premiums already paid

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)
*	Departments of the Army and Air Force, Oregon Military Department, 
Memorandum (Notification of Eligibility for Retired Pay at Age 60), 2 January 
2002
*	Department of the Army and Air Force, Oregon Military Department, 
Memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year 
Letter), 1 June 2007 (example copy)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, 
U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) 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 that upon his retirement, his National Guard Bureau (NGB) 
Form 23D (Army National Guard Notification of Eligibility for Retired Pay at Age 60) did 
not indicate he would be charged for SBP and he was not briefed by the retirement 
services section on the change in public law. He never intended to participate in the 
SBP; therefore, he feels he should not be charged for latent fees/charges for a benefit 
he is not interested in receiving. His retirement packet did not mention the current SBP 
practice.

3.  Following enlisted service in the Regular Army and a break in service, he enlisted in 
the Army National Guard on 28 December 1995.

4.  His NGB Form 22 (Report of Separation and Record of Service) shows he was 
honorably discharged from the Oregon Army National Guard and transferred to the 
Retired Reserve effective 27 December 2001. He completed 22 years, 11 months, and 
29 days of total service for retired pay.

5.  Departments of the Army and Air Force, Oregon Military Department, memorandum 
(Notification of Eligibility for Retired Pay at Age 60), 2 January 2002, notified him that 
having completed the required years of service, he was eligible for retired pay upon 
application at age 60 in accordance with statutory guidance. The memorandum does 
not contain guidance pertaining to the RCSBP.

6.  Headquarters, National Guard, Orders 10-16, 10 January 2002, honorably 
discharged him from the Army National Guard and assigned him to the Retired Reserve 
effective 27 December 2001.

7.  His records are void of a DD Form 2656-5 showing he made an RCSBP election 
within 90 days of receipt of his 20-year letter.

8.  The Circuit Court Stipulated General Judgment of Dissolution of Marriage shows the 
applicant (respondent) and his then-wife, (petitioner), who were married on 29 July 
1980, were granted a divorce on 24 October 2006. the court judgment noted the 
applicant's military retirement account was awarded to him, free and clear of any 
interest on the part of his spouse.

9.  The State Application, License, and Record of Marriage, filed on 18 September 
2009, shows he married on 4 September 2009.

10.  His NGB Form 23B (Army National Guard Retirement Points History Statement), 
prepared on 1 February 2021, shows he completed 22 years, 11 months, and 29 days 
of creditable service for retired pay.

11.  His DD Form 2656 (Data for Payment of Retired Personnel), 7 February 2021, 
shows in:

	a.  Part III (SBP), Section IX (Dependency Information), he entered the name of his 
spouse with a date of marriage of 4 September 2009;

	b.  Part III, Section X (SBP Election), block 33 (Reserve Component Only (This 
section refers to the decision you previously made on the DD Form 2656-5 (RCSBP 
Election Certificate) when you were notified of eligibility to retire, in most cases you do 
not have the right to make a new election on this form), he placed an "X" in the box by 
the statement: "Option A – Previously declined to make an election until eligible to 
receive retired pay";?
	c.  Part III, Section X (SBP Election), block 34 (SBP Beneficiary Category(ies)), he 
placed an "X" in the box by the statement: "I elect not to participate in SBP";

	d.  Part III, Section X (SBP Election), block 38 (Former Spouse Information), he 
entered the name of his former spouse with a date of divorce of 24 October 2006;

	e.  Part IV (Certification), Section XI (Certification), block 39 (Member), he signed the 
form on 7 February 2021 and his signature was witnessed on the same date; and

	f.  Part V (Spouse SBP Concurrence), Section XII (SBP Spouse Concurrence), 
block 41 (Spouse), his spouse signed the form on 10 February 2021 before a notary 
public.

12.  His DD Form 108 (Application for Retired Pay Benefits) shows he applied for retired 
pay to begin on 4 August 2021 and signed this form on 23 February 2021.

13.  He reached 60 years of age in August 2021.

14.  U.S. Army Human Resources Command Orders C08-195086, 5 August 2021, 
retired him and placed him on the Army of the United States Retired List in the retired 
grade of staff sergeant effective 4 August 2021.

15.  He provided a Department of the Army and Air Force, Military Department, 
memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), 
1 June 2007, as an example of the notification memorandum containing guidance 
regarding the RCSBP, which states:

Public Law 95-397, 30 September 1978, created the Reserve Components Survivor 
Benefit Plan (RCSBP), in which you are entitled to participate. RCSBP is your sole 
means of protecting your retired pay entitlement NOTE: Public Law 106-398, 
30 October 2000, requires that upon receipt of this Letter, a qualified Reserved [sic] 
Component member, who is married, will automatically be enrolled in the RCSBP 
under option C, Spouse and Child(ren) coverage based on Full Retired Pay, 
UNLESS different coverage is selected within 90 days of receipt of this letter. 
Notarized spousal concurrence is required in order to decline full and immediate 
coverage for annuitants. FAILURE TO MEET THIS REQUIREMENT WILL RESULT 
IN THE RETENTION OF FULL COVERAGE FOR YOUR SPOUSE AND 
CHILD(REN). If you elect to remain covered under the automatic provision of the 
Law you must provide this Command written correspondence (the enclosed 
DD Form 2656-5 (formally DD Form 1883) is required) stating who you have 
designated as annuitant(s). The cost for this participation will commence upon your 
receipt of retired pay at age 60. Detailed information concerning RCSBP program 
and cost is enclosed. You must contact this Command for answers to specific 
individual questions.

16.  The email correspondence from a Defense Finance and Accounting Service 
(DFAS) pay technician (Reply: Army Review Boards Agency Assistance), 20 January 
2022, notes the applicant has spouse coverage and shows the beneficiary.

	a.  DFAS does not have any paperwork regarding the applicant's RCSBP election 
and since he had a spouse at the time, he was automatically enrolled for RCSBP 
coverage. The RCSBP overrides any DD Form 2656 election he would have sent to 
DFAS; therefore, his DD Form 2656 to decline spouse coverage is not valid.

	b.  The member must keep spouse SBP coverage until the 25th-36th month after 
retirement, then he can terminate the SBP, but the RCSBP cost will remain.

	c.  Automatic RCSBP coverage goes into effect for members who receive their  
20-year notice of eligibility after 1 January 2001 and who fail to make an election within 
90 days. Until the makeup of the retiree's family is verified, the member is charged a 
default cost. Any spouse or eligible children who the member had with them at the time 
of receiving his or her 20-year notice of eligibility are covered under the RCSBP at the 
full and immediate level of coverage. (Note: The DFAS database contains only the 
document already discussed above.)

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the applicant's military records, the Board determined that relief was not warranted. The 
Board carefully considered applicant’s contentions, military record, and regulatory 
guidance. The Board noted that the applicant was a member of the reserves and as 
such, in the absence of positive action on his part to make an election within 90 days 
after receipt of the notice of eligibility, his spouse was automatically enrolled. Based on 
the preponderance of evidence available for review, the Board determined the evidence 
presented insufficient to warrant a recommendation for relief.

 


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice. Therefore, the Board determined the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned.
	 
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 NOTES(S): SBP elections are made by category, not by name. 
Options include "Spouse Only," "Spouse and Child(ren)," "Former Spouse," "Child(ren) 
Only," "Natural Interest Person," "No Beneficiary," and "Decline."
?
REFERENCES:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of 
military records must be filed within 3 years after discovery of the alleged error or 
injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to 
timely file within the 3-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  Public Law 92-425, enacted 21 September 1972, established the 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. 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.

3.  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. 
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

4.  Title 10, U.S. Code, section 1448, requires notice to a spouse if a member elected 
not to participate in the SBP. The statute also provided for automatic enrollment for 
spouse coverage at the full base amount unless a member affirmatively declined to 
participate in the SBP prior to receiving retired pay.

5.  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.

6.  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 the SBP. The spouse's 
concurrence is required. No premiums will be refunded to those who opt to disenroll. 
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.

//NOTHING FOLLOWS//