ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 February 2022 DOCKET NUMBER: AR20210013409 APPLICANT REQUESTS: * reconsideration of his records to show he elected not to participate in the Survivor Benefit Plan (SBP) * refund of all SBP premiums erroneously withheld from his 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 1883 (SBP Election Certificate), 15 January 2002 * U.S. Army Human Resources Command (HRC) Orders C05-003267, 10 May 2019 * Defense Finance and Accounting Service Letter, 23 October 2019 * Army Board for Correction of Military Records (ABCMR) Docket Number AR20190015061, 3 November 2020 * ABCMR Letter, 1 April 2021 * HRC Portal Screenshot, 15 April 2021 * Supplemental Letter, 16 April 2021 * Supplemental Letter, 19 May 2021 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20190015061 on 3 November 2020. The applicant provided his DD Form 1883, 15 January 2002, as evidence not previously considered by the Board. 2. The applicant states that at the time of his retirement from the U.S. Army Reserve, he and his wife, who recently passed away, elected to not participate in the SBP due to her terminal illness. a. Prior to his retirement, his wife signed the Spouse SBP Concurrence on his DD Form 2656 (Data for Payment of Retired Personnel), but the date signed was formatted using month/day/year instead of year/month/day, which caused the form to be rejected and defaulted to automatic SBP coverage. b. When the Board denied his application, they did not have a copy of his DD Form 1883 showing that after he received his 20-year letter in 2001, he and his wife elected Option A, ddefering an election and remaining eligible to make an election for coverage at age 60. This document is filed in his Army Military Human Resource Record, showing that it was timely submitted. 3. On 7 November 2001, he was serving as member of a U.S. Army Reserve troop program unit in the rank/grade of lieutenant colonel/O-5. 4. The U.S. Army Reserve Personnel Command memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 7 November 2001, advised him that he completed the required years of service and was eligible for retired pay upon application at age 60. He was further advised that he was eligible to participate in the Reserve Component SBP (RCSBP) and, if he is married or has a dependent child, he would automatically be enrolled in the RCSBP under option C (Immediate Annuity), Spouse and Child(ren), based on full retired pay unless he elected different coverage or no coverage within 90 days after receiving this notification memorandum. If he is married on the date of election and elects less than full and immediate coverage, spouse concurrence is required by law. That concurrence will be recorded on a DD Form 1883 and the spouse's signature must be notarized. 5. His DD Form 1883, 15 January 2002, 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 VI (Signature of Witness) – 15 January 2002 * section VI (Signature of Spouse) – 15 January 2002 6. On 6 January 2009, he transferred to the Retired Reserve. 7. His DD Form 2656, 16 September 2018, shows in: * item 4 (Retirement/Transfer Date) – 6 June 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 "Yes" * item 39c (Member – Date Signed) – 16 September 2018 * item 41c (Spouse SBP Concurrence – Date Signed) – 18 September 2018 * item 42 (Notary Witness – Date Signed) – 18 September 2018 8. HRC Orders C05-993267, 10 May 2019, retired him and placed him on the Retired List in the rank/grade of colonel/O-6 effective 6 June 2019. 9. On 6 December 2019, he reached age 60. 10. On 3 November 2020 in Docket Number AR20190015061, the ABCMR denied his request to terminate his SBP and reimbursement for premiums erroneously withheld. The Board found no documentation that the applicant, with spousal concurrence, declined SBP coverage upon receipt of his 20-year letter in 2001. Because he was married, failure to decline coverage at that time would have defaulted to immediate coverage (Option C), regardless of his election when applying for retired pay at age 60. 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, his military records, and regulatory guidance were carefully considered. Board members noted that in 2002, applicant opted, with spousal concurrence, to defer his SBP election until he reached retirement age. At retirement he declined SBP, again with spousal concurrence. However, he was enrolled anyway. He previously sought relief from the ABCMR and the Board considered the case but the document he and his wife signed in 2002 was not available in his service record. In the absence of such a document, the Board presumed incorrectly that applicant had been auto-enrolled in SBP in 2002 and denied relief. In this request for reconsideration, applicant provided a copy of the form from 2002 showing he opted to defer his SBP election. He also provided proof the form was contained in his military record. Board members determined that an error was made when applicant was enrolled in SBP and charged with premiums. 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 amendment of the ABCMR's decision in Docket Number AR20190015061 on 3 November 2020. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by * Showing the applicant submitted a DD Form 1883 on 15 January 2002, electing to defer SBP coverage to Age 60 (Option A) and his spouse concurred with his election * Showing the applicant submitted a DD Form 2656 on 16 September 2018 declining SBP participation and his spouse concurred with his election * Showing both forms were timely received, accepted, and processed * Reimbursing him of any premiums 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 to disenroll. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210013409 1 1