IN THE CASE OF: 

		BOARD DATE:  2 February 2023

		DOCKET NUMBER: AR20220007121


APPLICANT REQUESTS: correction of item 13 (Type of Coverage) of his 
DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election 
Certificate) to remove his election of "Spouse Only," since he elected to decline to make 
a decision until age 60.

APPLICANT'S SUPPORTING DOCUMENT(S) 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 2656-5 (RCSBP Election Certificate), 6 November 2005
*	Defense Finance and Accounting Service (DFAS) Retired and Annuity Pay 
Letter, 1 March 2022, with Summary of Retired Pay Account

FACTS:

1.  The applicant states:

	a.  On his DD Form 2656-5, 6 November 2005, in item 12 (Options), he elected 
Option A. He was instructed to check a type of coverage in item 13. His spouse signed 
this DD Form 2656-5 and she also signed on his DD Form 2656 (Data for Payment of 
Retired Personnel), 6 October 2021, stating that they did not want to any SBP 
coverage.

	b.  This error should have been caught by numerous organizations. His choice was 
obvious as to his selection to decline to make a decision until he reached age 60.

2.  The Joint Force Headquarters Wisconsin, Wisconsin National Guard Memorandum 
(Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter)), 29 August 2005, 
notified the applicant that having completed the required years of service, he is eligible 
for retired pay upon application at age 60.

	a.  He was informed of Public Law 106-398, 30 October 2000, which requires that 
upon receipt of Notification of Eligibility, a qualified Reserve 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).

	b.  On 6 November 2005, he acknowledged receipt of his Notification of Eligibility.

3.  His DD Form 2656-5 (RCSBP Election Certificate), 6 November 2005, shows in:

*	Section III (Spouse/Dependent Child(ren) Information) – his spouse name with a 
date of marriage of 
*	item 12 (Options (NOTE – Selection Option A or Option B requires spouse 
concurrence in Section X (Spouse Concurrence)) – he elected Option A (I 
decline to make an election until age 60); instructions stated (NOTE – Do Not 
Select Type of Coverage below)
*	item 13 (Type of Coverage) – he elected "Spouse Only"
*	Section V (Level of Coverage) – he elected Full Retired Pay
*	Section X (Spouse Concurrence) – his spouse signed and dated the form; 
however, there was no Notary Public signature or date

4.  His DD Form 2656-5 (RCSBP Election Certificate), 1 April 2006 (147 days after his 
receipt of Notification of Eligibility), and uploaded into the applicant's Army Military 
Human Resource Record on 19 March 2007, shows in:

*	Section III (Spouse/Dependent Child(ren) Information) – his spouse's name with 
a date of marriage of 
*	item 12 (Options (NOTE – Selection Option A or Option B requires spouse 
concurrence in Section X (Spouse Concurrence)) – he elected Option A (I 
decline to make an election until age 60); instructions stated (NOTE – Do Not 
Select Type of Coverage below)
*	item 13 (Type of Coverage) – he elected "Spouse Only"
*	Section V (Level of Coverage) – he elected Full Retired Pay
*	Section X (Spouse Concurrence) – his spouse and a Notary Public signed and 
dated the form on 1 April 2006

5.  Headquarters, 88th Readiness Division Orders 21-225-00036, 13 August 2021, 
reassigned him to The Retired Reserve on 1 October 2021.

6.  His DA Form 2656 (Data for Payment of Retired Personnel), 6 October 2021, shows 
in:

	a. Item 33 (Reserve Component Only (This section refers to the decision you 
previously made on the DD Form 265-5 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)), instructions 
state, Reserve/National Guard members who achieve 20 qualifying years of service 
make the election to participate in the RCSBP on DD Form 2556-5 within 90 days of 
being notified of eligibility for a non-regular retirement not when applying for retired pay, 
unless that member previously elected to defer coverage. You must indicate your 
previous election in item 33a through item 33c before proceeding to item 34. If you 
previously elected Option B or Option C. DO NOT enter an election in item 34.). He did 
not choose an option.

	b.  Item 34 (SBP Beneficiary Categories) he elected not to participate in SBP.

	c.  Section XII (SBP Spouse Concurrence) shows his spouse signed and dated the 
form on 6 October 2021. The Notary witness signed the form; however, he failed to date 
his signature.

7.  U.S. Army Human Resources Command Orders C02-291463, 28 February 2022, 
retired him and placed him on the Retired List, effective 4 January 2022.

8. The DFAS Retired and Annuity Pay Letter, 1 March 2022, with Summary of Retired 
Pay Account, shows the applicant elected RCSBP on 30 November 2005. His RCSBP 
became effective on 4 January 2022, with spouse only coverage, and with a RCSBP 
premium cost of $161.39.

9.  A DFAS email (SBP Related Documents/Information), 24 October 2022, the Military 
Pay Technician stated, members RCSBP election was invalid due to making multiple 
selection, resulted in AUTO RCSBP. According to member's 20-Year Letter, he was 
required to make an election. The DFAS Military Pay Technician attached the 
DD Form 2656-5, dated 6 November 2005 and the applicant's DD Form 2656, dated 
6 October 2021.

10.  The email from the Department of the Army Deputy Chief of Staff, G-1 (RCSBP), 
16 December 2022, states that according to the Defense Retired and Annuitant Pay 
System, the applicant's account was set up as RCSBP with immediate coverage 
(Option C) at full retired pay. The current election is shown as spouse, effective 
4 January 2022, with a SBP cost of $130.09 and RCSBP cost of $42.60.



BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined 
relief was not warranted. The applicant’s contentions, the military record, and regulatory 
guidance were carefully considered.  One potential outcome discussed was to grant 
relief based upon the two submissions demonstrated a confusion of the form and, in the 
opinion of the minority, it demonstrates an intent to decline coverage based upon the 
concurrence from the spouse.  However, the majority found that the applicant had the 
responsibility for reading and understanding the forms he is signing, therefore, specific 
intent cannot be determined.  Therefore, the Board recommended denying relief.

The Board wished to inform the applicant that he may wish to cancel coverage during 
period of open session for SBP, or during the 25th month after receipt of retired pay.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	: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.


REFERENCES:

1.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army acting through the ABCMR. The ABCMR begins its consideration of each case 
with the presumption of administrative regularity. The applicant has the burden of 
proving an error or injustice by a preponderance of the evidence.

2.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for 
those who qualified for Reserve retirement but were not yet age 60 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, and (C) elect that a 
beneficiary receive an annuity immediately upon their death if before age 60. 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. RCSBP 
coverage automatically converts to SBP coverage upon retirement.

3.  Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA 
relating to the SBP. It permits a person to elect to provide an annuity to a former 
spouse. Any such election must be written, signed by the person making the election, 
and received by the Secretary concerned within 1 year after the date of the decree of 
divorce. The member must disclose whether the election is being made pursuant to the 
requirements of a court order or pursuant to a written agreement previously entered into 
voluntarily by the member as part of a proceeding of divorce.

4.  Title 10, U.S. Code, section 1450(f)(3)(A), permits a former spouse to make a written 
request that an SBP election of former spouse coverage be deemed to have been made 
when the former spouse is awarded the SBP annuity incident to a proceeding of 
divorce. Section 1450(f)(3)(C) provides that an election may not be deemed to have 
been made unless the request from the former spouse of the person is received within 
1 year of the date of the court order or filing involved.

5.  Title 10, U.S. Code, section 1454 (Correction of Administrative Errors), states the 
Secretary concerned may, under regulations prescribed under section 1455 of this title, 
correct or revoke any election under this subchapter when the Secretary considers it 
necessary to correct an administrative error.

6.  Title 10, U.S. Code, section 1552 (Correction of Military Records: Claims Incident 
Thereto), states the Secretary of a Military Department may correct any military record 
of the Secretary's Department when the Secretary considers it necessary to correct an 
error or remove an injustice. Such corrections shall be made by the Secretary acting 
through boards of civilians of the executive part of that Military Department.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220007121


1
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1