ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 June 2022 DOCKET NUMBER: AR20210014232 APPLICANT REQUESTS: correction of her records to show she elected to terminate participation in the Survivor Benefit Plan (SBP) within the allowable time frame of her second anniversary of the date on which her retired pay started. 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), 18 May 2002 * DD Form 2656 (Data for Payment of Retired Personnel), 1 October 2018 * DD Form 2656-2 (SBP Termination Request), 20 April 2021 FACTS: 1. The applicant states that following her retirement from the Army National Guard, she did not apply for retired pay until age 62. As a result, she did not begin receiving retired pay until 1 January 2019, which is within the allowable time frame to terminate SBP coverage. However, after she submitted the required paperwork and called the Defense Finance and Accounting Service Retired Pay Section on two occasions, she was told the action could not be completed. On 17 July 2021, she received a letter denying her request for SBP termination. She has exhausted her administrative remedies. 2. On 8 April 2002, she was serving as a traditional member of the Michigan Army National Guard in the rank/grade of sergeant/E-5. 3. The Headquarters, Michigan Army National Guard, memorandum (Notification of Eligibility for Retired Pay at Age 60), 8 April 2002, advised her that she completed the required years of service and was eligible for retired pay upon application at age 60. Enclosed were copies of her National Guard Bureau (NGB) Form 23A (Army National Guard Retirement Points History Statement), blank DD Form 1883 (SBP Election Certificate), SBP Fact Sheet, and Military Retirement Handbook. 4. Her DD Form 1883, 18 May 2002, shows in: * item 6 (Are You Married?) – she marked "Yes" * item 7 (Do You Have Dependent Children?) – she marked "Yes" * item 8 (Check to Indicate Type of Coverage) – she marked "Spouse only" * item 9a (Annuity Based on Full Amount or Reduced Portion) – she marked "Full" * item 9c (Election Status) – she marked "Option C (Immediate Coverage)" * section VI (Signature of Retiree) – 18 May 2002 * section VI (Signature of Witness) – 18 May 2002 * section VI (Signature of Spouse) – 18 May 2002 5. On 26 August 2004, she was promoted to the rank/grade of staff sergeant/E-6. 6. On 18 October 2005, she was administratively reduced to the rank/grade of sergeant/E-5 effective 28 August 2005. 7. Michigan Army National Guard Orders 291-020, 18 October 2005, transferred her to the Retired Reserve effective 30 August 2005. 8. On 25 November 2016, she reached age 60. 9. Her DD Form 2656, 1 October 2018, shows in: * item 4 (Retirement/Transfer Date) – 25 November 2016 * item 15 (Veterans Affairs Disability Compensation) – she receives a monthly payment of $600.90 effective 1 January 2007 * item 33 (SBP Election – Reserve Component Only) – she marked "Option C – Previously Elected Immediate Reserve Component SBP Coverage" * item 39c (Member – Date Signed) – 1 October 2018 * item 40c (Witness – Date Signed) – 1 October 2018 10. U.S. Army Human Resources Command Orders C03-992122, 21 March 2019, retired her and placed her on the Retired List in the rank/grade of staff sergeant/E-6 effective 25 November 2016. 11. Her DD Form 2656-2, 20 April 2021, shows in: * section III (Signature of Retiree) – 20 April 2021 * section VI (Signature of Spouse) – 21 April 2021 * section VI (Signature of Witness) – 21 April 2021 12. A copy of the Defense Finance and Accounting Service SBP termination denial letter is not available for review. 13. "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. 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 Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records the Board found evidence showing a signed and notarized spousal concurrence and it was clear the intent of applicant and spouse was to decline SBP at the time of her retirement. Evidence shows the applicant properly filled out the form to terminate SBP participation and her spouse concurred, but she submitted it past her termination window. The Board agreed the applicant’s one year window to terminate her SBP participation closed on 24 March 2019. The record shows her date retirement pay should have started running on 21 March 2019 instead of 25 November 2019. Based on this the Board determined relief was warranted and relief was granted to terminate his Survivor Benefit Plan (SBP) enrollment and reimburse the applicant all previous payments made. 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 that the evidence presented was 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 she properly declined the Survivor Benefit Plan (SBP) on 23 November 2019, with proper spousal concurrence, and her election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the repayment of any previously paid SBP premiums. 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. Public Law 95-397, the Reserve Component Survivor Benefit Plan (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 the 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) AR20210014232 1 1