IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220000925 APPLICANT REQUESTS: * correction of his records to show his Reserve Component Survivor Benefit Plan (RCSBP) election as option A instead of option C * a personal appearance hearing before the Board 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) * State Superior Court Waiver, Decree of Dissolution of Marriage, and Agreement of Settlement, 24 January 2015 * DD Form 2656-6 (Survivor Benefit Plan (SBP) Election Change Certificate), 22 December 2016 FACTS: 1. The applicant states: a. He wants to update his SBP to remove his former spouse after his divorce on 24 January 2015. He no longer has any minor children, and they also need to be removed. b. He submitted a DD Form 2656-6 on 22 December 2016 to have his former spouse removed, but his request was denied because it was more than a year since their divorce. He was not aware that the SBP should be updated within 1-year of a divorce being final. He no longer has any dependent children or a spouse and would like to update his DD Form 2656-6 to option A. His former spouse, Colonel (COL) is currently serving in an Active Guard Reserve position in the Indiana Army National Guard. His divorce decree does not state his ex-wife must be covered by his SBP. 2. The applicant was appointed as a Reserve commissioned officer of the Army on 15 May 1987 in the Aviation Branch in the rank/grade of second lieutenant/O-1. He was subsequently appointed and executed an oath of office in the Indiana Army National Guard on 16 May 1987. 3. He was promoted to the rank/grade of major/O-4 effective 1 April 2002. 4. The State of Indiana Military Department memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), notified him that having completed the required years of qualifying service, he was eligible for retired pay upon application at age 60 in accordance with statutory guidance. Paragraph 3 states: Public Law 95-397, 30 September 1978, created the Reserve Component 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 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). 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 [RCSBP Election Certificate] (formally [sic] 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. 5. His DD Form 2656-5, 14 December 2005, shows in: a. Section II (Marital/Dependency Status), he placed an "X" in the block "Are you married?" and placed an "X" in the block "Do you have any dependent children?"; b. Section III (Spouse/Dependent Child(ren) Information), block 9a, he listed as his spouse with a marriage date in c. Section III, block 11 (Dependent Children), he listed (daughter – from previous marriage), (daughter – from previous marriage), and (daughter); d. Section IV (Coverage), block 12 (Options), he placed an "X" in the block "Option C (Immediate Annuity). I elect to provide an immediate annuity beginning on the day after date of my death, whether before or after age 60";? e. Section IV, block 13 (Type of Coverage), he placed an "X" in the block "Spouse and Child(ren)"; f. Section V (Level of Coverage), block 14, he placed an "X" in the block "Full Retired Pay"; g. Section VI (Supplemental SBP Coverage), block 15, he placed an "X" in the block "I decline supplemental coverage for my spouse/former spouse"; and h. Section IX (Member Signature), he signed the form on 14 December 2005 and his signature was witnessed on the same date in 6. Joint Forces Headquarters Indiana Orders 158-019, 7 June 2007 honorably separated him from the Army National Guard and transferred him to the Retired Reserve effective 30 June 2007 by reason of his voluntary request. 7. His National Guard Bureau Form 22 (Report of Separation and Record of Service) honorably transferred him to the U.S. Army Reserve Control Group (Retired Reserve) in the rank/grade of major/O-4 effective 30 June 2007. He completed 21 years, 10 months, and 7 days of total service for retired pay. 8. He and his then-spouse signed a Waiver, Decree of Dissolution of Marriage, and Agreement of Settlement in Superior Court on 12 January 2015. This agreement noted they were married on with one child born of the marriage, in . Paragraph 17 (Investment/Pensions) of the Property Division portion noted: "Each party shall become the owner without right or claim of the other of his/her investment accounts and pensions." 9. He and his then-spouse were granted a divorce on 24 January 2015. 10. He provided a DD Form 2656-6, 22 December 2016, showing in: a. Section II (Current Coverage), block 7 (My Current Coverage is), he checked "Spouse and Child"; b. Section III (Conditions that Trigger Eligibility to Change Coverage), block 8 (I Am Requesting a Change in Coverage Based on), he checked the "Divorce" box. The note states: "A member with spouse coverage who divorces, AND who does not elect former spouse coverage, is automatically in a 'Suspended Coverage' status. To elect former spouse coverage, submit a DD Form 2656-1, 'Former Spouse Election Certificate.'" This section also notes: "If either "Divorce" or "Death of Spouse" is selected, and the member had previously elected spouse and child coverage, the coverage would convert to "Child Only" coverage if the member has an eligible child. Exception: In the event of divorce and the member is required to provide former spouse coverage"; c. Section IV (Requested Change to Coverage), block 9 (Place an X in the Appropriate Box to Indicate Your Election), he checked the "Child(ren) Only" box; d. Section VI (Spouse and Child(ren) Information), block 13 (Dependent Children), he listed two daughters, with a birthdate in and with a birthdate in and e. Section VII (Member Signature), he signed the form on 22 December 2016 and his signature was witnessed on the same date in 11. On 7 September 2022, a DFAS pay technician stated the DFAS database does not contain any paperwork or show the applicant as being on the retired rolls. 12. The applicant will reach age 60 in BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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 applicant's contentions, his military records, and regulatory guidance were carefully considered. The laws governing SBP provide that premiums will be suspended for spouse coverage when there is no longer an eligible beneficiary. Likewise, the laws provide that premiums will be suspended for child coverage when there is no longer a beneficiary (10 USC 1452(a)(3), (b)(2), and DOD 7000.14-R, Fin. Mgmt. Reg., Vol. 7B, Ch. 45, para. 4506 (Dec. 2020). In this case, the applicant’s decision to opt for spouse and children coverage in 2014 has essentially become moot because he no longer has an eligible spouse (they were divorced) and he no longer has eligible children, because they all “aged out” beyond eligibility. Thus, in accordance with the aforementioned laws, premiums are be suspended because there are no longer eligible spouse or child beneficiaries. But even this observation is essentially also moot because the applicant will not attain age 60 until. Any premiums that might be deducted will not be deducted until he begins receiving retirement pay in. If DFAS mistakenly deducts premiums at that time, the applicant’s first recourse is with DFAS. If DFAS refuses to stop taking deductions after being apprised of the problem, only then will the applicant have a legitimate claim reviewable by the ABCMR. But until then, his application is premature. The Board determined no error or injustice has occurred. 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 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. 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. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Public Law 92-425, enacted 21 September 1972, established the Survivor Benefit Plan (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. 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. A member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP. 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. 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 99-661, 14 November 1986, permitted divorce courts to order SBP coverage without the member's agreement in those cases where the retiree had elected spouse coverage at retirement or was still serving on active duty and had not yet made an SBP election. 6. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option upon receipt of the 20-year letter results in the default election of option C. 7. Army Regulation 600-8-7 (Retirement Services Program), paragraph 4-6, states that between receipt of the notification of eligibility (20-year letter) and 60 days after receipt of the 20-year letter, Reserve Component Soldiers and spouses should be counseled on the RCSBP, to include categories available under Title 10, U.S. Code, section 1448(a), and the effects of such elections, in accordance with Title 10, U.S. Code, section 1455(b)(1). After receiving the notification of eligibility, Reserve Component Soldiers have 90 days to make their RCSBP elections using a DD Form 2656-5. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000925 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1