IN THE CASE OF: BOARD DATE: 21 June 2023 DOCKET NUMBER: AR20220011146 APPLICANT REQUESTS: in effect, correction of his records to show he declined participation in the Survivor Benefit Plan (SBP) with spousal concurrence 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 (Data for Payment of Retired Personnel), 15 June 2022 * DD Form 2656, 15 June 2022 and 6 August 2022 FACTS: 1. The applicant states he requests to withdraw SBP coverage for his spouse due to erroneous enrollment. His wife was not present to sign the DD Form 2656 at the time of his retirement out-processing. The SBP Counselor stated his wife would be notified by mail that he elected not to participate in the SBP as required by statute. His wife did receive the letter on 1 July 2022, but there were no instructions that his wife had to sign the DD Form 2656 and have it notarized before his retirement date of 30 June 2022. 2. The applicant married on 29 December 2002. 3. Following enlisted service in the Regular Army, he enlisted in the Texas Army National Guard on 24 June 2005. 4. His records contain a Judicial District Court Final Decree of Divorce, 20 September 2005, showing he and were granted a divorce on 9 September 2005. The decree noted waived any and all rights, privileges, and exemptions existing, or which may hereafter exist under the Servicemembers Civil Relief Act, including the appointment of representation in this cause. 5. The Texas Military Department, Texas Army National Guard, memorandum (Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years)), 17 September 2019, notified him that having completed the required years of service, he was eligible for retired pay upon application at age 60 unless he qualified for a reduced eligibility age in accordance with statutory guidance. Paragraph 4 stated: You are eligible to participate in the Reserve Component Survivor Benefit Plan (RCSBP). The RCSBP will provide an annuity based on your retired pay to a surviving spouse, spouse and dependent child or children, child or children only, or a person with an insurable interest in you. Upon receipt of this Notification of Eligibility, if you are married, or have a dependent child you will automatically be enrolled in accordance with Title 10, U.S.C. [U.S. Code] Section 1448(a)(2)(B) in the RCSBP under option C (Immediate Annuity), Spouse and Child(ren), based on full retired pay unless you elect different or no coverage within 90 days after the date you receive this notification. If you are married on the date of your election, and you elect less than full and immediate coverage, your spouse's concurrence is required by law. That concurrence will be recorded in section IX of DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate), and the signature must be notarized. Single Soldiers are not required or permitted to make an election in the Reserve Component Survivor Benefit Plan (RCSBP) unless they meet one of the options in the written materials provided with their NOEs [notifications of eligibility]. You must complete and return the enclosed DD Form 2656-5 to the address in the letterhead. We will retain a copy of your completed election with a copy of this notification in your iPERMS [interactive Personnel Electronic Records Management System] and State records. Detailed information on the RCSBP program and its estimated cost is enclosed. You may contact us with questions on the RCSBP. 6. His records do not contain, and he did not provide a DD Form 2656-5 executed within 90 days of receipt of his 20-year letter. 7. His DD Form 2656, 15 June 2022, with SBP counseling statements, shows in: a. Part III (SBP), Section IX (Dependency Information), the name of his spouse as with a marriage date of 23 July 2007; b. Part III, Section IX, block 32 (Dependent Children), he listed a son and stepdaughter with birthdates in 2003 and 2006; c. Part III, Section X (SBP Election), block 33 (Reserve Component Only. (This section refers to the decision you previously made on the DD Form 5656-5 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.) Reserve/National Guard members who achieve 20 qualifying years of service make the election to participate in the Reserve Component (RC) SBP (DD Form 2656-5) 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 Block 33a through 33c before proceeding to Block 34. If you previously elected Option B or Option C, DO NOT enter an election in Block 34. (Check only one in Block 33a. through 33c.)), no entries; d. 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. (I have eligible dependents under the plan. If "Yes," spouse concurrence is required in in Part V)"; e. Part IV (Certification), Section XI (Certification), block 39 (Member), he signed the form on 15 June 2022. An SBP Counselor at Joint Base San Antonio, TX, signed the form on the same date; and f. Part V (Spouse SBP Concurrence), Section XII (SBP Spouse Concurrence) (Required ONLY when the member is married and elects either: (a) child only SBP coverage, (b) does not elect full spouse SBP coverage; or (c) declines SBP coverage. The date of the spouse's signature in Block 41c MUST NOT be before the date of the member's signature in Block 39c, or on or after the date of retirement listed in Part I, Section I, Block 4. The spouse's signature MUST be notarized), this section does not contain his spouse's signature and thus was not notarized. 8. His records do not contain and he did not provide a marriage certificate showing he remarried in 2007. 9. In a memorandum (Request for Active Duty Retirement), 15 June 2021, he requested voluntary retirement from the Texas Army National Guard and the Active Guard Reserve Program with a retirement date of 30 June 2022. 10. Texas Army National Guard Orders 152-004, 1 June 2022, released him from active duty on 30 June 2022 and placed him on the Retired List effective 1 July 2022 in the rank of sergeant first class. 11. He retired from active duty on 30 June 2022. He completed 20 years and 18 days of active service and 2 years, 8 months, and 15 days of inactive service. 12. His National Guard Bureau Form 23A (Army National Guard Current Annual Statement), 9 July 2022, shows he completed 22 years, 9 months, and 29 days of creditable service for retired pay. 13. He provided another DD Form 2656, 15 June 2022, that is nearly identical to his original DD Form 2656 except Part V (Spouse SBP Concurrence) contains his spouse's signature dated and notarized on 6 August 2022. 14. The email correspondence from a Defense Finance and Accounting Service (DFAS) pay technician (Reply: Army Board for Correction of Military Records (ABCMR) Assistance), 5 June 2023, notes the applicant had automatic coverage since his retirement. The DFAS database contains: a. the applicant's original DD Form 2656, 15 June 2022, without his spouse's signature/concurrence, with SBP counseling documents and retirement orders, showing he elected not to participate in the SBP; and b. a Department of the Air Force, Joint Base San Antonio, letter from the Chief, Transition Center, 15 June 2022, informing the applicant's spouse, , that her husband will retire from military service effective 30 June 2022 and he declined SBP coverage. The second paragraph noted: SBP was established by Congress to allow military retirees to elect to receive a reduced amount of retired pay in order to provide an annuity of SBP coverage based on their full retired pay to concur with the election or the Soldier will receive automatic Spouse SBP coverage based on their full retired pay. Therefore, since your spouse elected to Decline SBP coverage, you must complete the attached Spouse SBP Concurrence Statement and return it to this office in the attached addressed envelope prior to 30 June 2022, your spouse's retirement date. Your signature on the Spouse SBP Concurrence Statement must be witnessed by a Notary Public or your concurrence will be invalid. If you non-concur, fail to return the spouse statement prior to your spouse's retirement date, or do not have your signature on the statement witnessed by a Notary Public, your spouse will receive automatic full Spouse SBP coverage based on full retired pay. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not 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 public law, policy and regulation. Upon review of the applicant’s petition and available military records, the Board found the applicant’s intentions were to decline SBP coverage as shown on his signed DD Form 2656. The Board agreed the applicant upon departure from his retirement counseling session, understand that he needed his spouse’s written and notarized concurrence to make his declination effective. Furthermore, the applicant knew that his spouse’s concurrence had to be provided to DFAS prior to his 30 June 2022 retirement date. 2. The Board found the applicant’s spouse received notification from the Joint Base San Antonio Transition Center, date 15 Jun 2022 which stated in paragraph 2, “Therefore, since your spouse elected to Decline SBP coverage, you must complete the attached Spouse SBP Concurrence Statement and return it to this office in the attached addressed envelope prior to 30 June 2022, your spouse's retirement date. Your signature on the Spouse SBP Concurrence Statement must be witnessed by a Notary Public or your concurrence will be invalid. If you non-concur, fail to return the spouse statement prior to your spouse's retirement date, or do not have your signature on the statement witnessed by a Notary Public, your spouse will receive automatic full Spouse SBP coverage based on full retired pay”. The Board determined there was insufficient evidence based on Title U.S. Code, section 1448, and the clear and concise guidance provided in the 15 June 2022 notification letter to the applicant’s spouse. The Board noted the applicant failed to provide his spouse’s notarized concurrence to make his declination effective. Based on the preponderance of evidence, the Board found no error or injustice and determined relief was without merit. Therefore, relief was denied. 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. REFERENCES: 1. 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. Elections are made by category, not by name. 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. 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 were 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 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. 3. Title 10, U.S. Code, section 1448, required 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 the member affirmatively declined to participate in the SBP prior to receiving retired pay. 4. 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. 5. 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 for disenrollment. 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. 6. Department of Defense Instruction 1332.42 (Survivor Annuity Program Administration) states a member may elect to discontinue participation by submitting DD Form 2656-2 during the period that is more than 2 years but less than 3 years after the first date of entitlement to receive retired pay. The member must submit the request no earlier than the 1st day of the 25th month, and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable. A member electing to terminate coverage is not eligible for continuation in the Program; however, the member has 30 days after submitting a request to discontinue participation to revoke the request.? 7. The National Defense Authorization Act for Fiscal Year 2023 includes an SBP open season. The SBP open season began on 23 December 2022 and ends on 1 January 2024. a. The SBP open season allows for retirees receiving retired pay, eligible members, or former members awaiting retired pay who are currently not enrolled in the SBP or RCSBP to enroll. For a member who enrolls during the SBP open season, the law generally requires that the member will be responsible to pay retroactive SBP premium costs that would have been paid if the member had enrolled at retirement (or enrolled at another earlier date, depending on the member's family circumstances). For retirees receiving pay, enrollment requires paying the premiums plus interest for the period since the date they were first eligible to enroll, as well as the monthly premiums moving forward. b. The SBP open season also allows eligible members and former members who are currently enrolled in either the SBP or RCSBP to permanently discontinue their SBP coverage. The law generally requires the covered beneficiaries to concur in writing with the election to discontinue. Previously paid premiums will not be refunded. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011146 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1