IN THE CASE OF:  

		BOARD DATE:  31 October 2022

		DOCKET NUMBER:  AR20220001677


APPLICANT REQUESTS:  

a.	Correction of his record to show he declined Reserve Component Survivor 
Benefit Plan (RCSBP) and SBP coverage with spousal concurrence.

b.	A video/teleconference before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	U.S. Army Reserve Command (USARC) Letter, Subject: Notification of Eligibility 
(NOE) for Retired Pay at Age 60, dated 25 April 2001
*	Orders C-05-107217, issued by U.S. Army Human Resources Command (HRC), 
	dated 16 May 2011
*	Army Knowledge Online (AKO) Webmail, dated 3 October 2011
*	DA Form 5016 (Chronological Statement of Retirement Points), dated 20 
	January 2021
*	Application for Retired Pay Benefits, dated 24 June 2021
*	DD Form 2656 (Data for Payment of Retired Personnel), dated 24 June 2021
*	Retiree Account Statement (RAS), dated 10 December 2021

FACTS:

1.  The applicant states:

a.	“I.am requesting that my record is corrected to indicate the correct SBP coverage 
Option "A". I should have no SBP or RC-SBP coverage. I attempted to correct this with 
the Defense Finance and Accounting Service (DFAS) and Retirement Services but was 
informed I must submit a request to the Army Review Board [Agency] to correct my 
record.

b.	In July 2001, I received my NOE for Retired Pay at Age 60 (20-year letter) dated 
April 2001, from the USARC. The letter informed me that I would be considered by 
default Option "A" if I made no selection on SBP coverage. This is what I wanted, and I 
confirmed this with a personnel command representative during a telephone call. I was 
concerned because of the time lapse between the date of the letter April 2001 and when 
I received the letter in July 2001 at my unit in Germany. I wanted Option "A" with the 
right to decide at age 60. I still remember the words of the personnel command 
representative during that call, he said ‘What does your letter say?’ I read the following 
sentence contained in the letter, ‘If you do not submit your election within 90 calendar 
days, you will not be entitled to survivor benefit coverage until you apply for retired pay 
at age 60.’ He then confirmed that I would be considered Option "A" by default if I did 
not make an election. I had a reasonable right to believe the USARC Personnel 
Command's representative and the official letter I had received. Therefore, I made no 
election with the understanding that I was option "A" by default.

c.	In September 2011, when I transitioned to the Retired Reserve, I became aware 
of an issue with my SBP option status, it was showing that I was Option "C" and not 
considered Option ''A". I immediately contacted HRC and was informed that the law had 
changed in January 2001 affecting SBP coverage. I made an appeal at that time 
pointing out the instructions listed in my "20 year" letter, dated April 2001, clearly stated 
differently. Further, I pointed out, if the law had changed after my letter was issued, why 
did the Army Reserve Personnel Command never send a corrected 20 year letter 
advising me of the error, explaining the changes in the law, with the new options 
presented for my decision. Based on my appeal, an HRC representative, Mr. confirmed 
in writing by email, in September 2011, that my status was reverted to Option A again. 
The Option "A" entitled me to decide on SBP coverage at age 60 upon application for 
retired pay.

d.	In February 2021, as I was approaching age 60, I completed my application for 
retired pay benefits, and I elected not to have SBP coverage on the application. My 
spouse concurred, and her signature was notarized by the US Embassy in as required 
by the application. The selection and notarizing action were completed as I believed I 
was an SBP option "A" retiree.

e.	In July 2021, I started receiving retired pay after my 60th birthday. I was finally 
able to access the MyPay account in December 2021. I was surprised to see that SBP 
and RCSBP coverage was being deducted from my retired pay. I should have no SBP 
or RCSBP coverage as selected on my application for retired pay. In December 2021, I 
contacted DFAS and Retirement Services to correct this mistake and provided evidence 
of my Option "A" status but was informed that my record indicates that I am SBP Option 
"C" and therefore, I must make a request to the ARBA to correct my record.”

2.  The applicant provides the following documents:

a.	AKO Webmail, dated 3 October 2011, which states, “Good morning [applicant], 
your SBP has been changed from Option C to Option A per your request.”
b.	DA Form 5016, dated 20 January 2021, shows he retired and completed 31 
years, 4 months and 6 days of qualifying years for retirement.

c.	RAS, dated 10 December 2021, shows the applicant is paying SBP for spouse 
only coverage in the amount of $265.34 and RCSBP costs in the amount of $89.81 for 
his spouse.

3.  A review of the applicant’s service record shows:

a.	On 25 April 2001, he received a NOE for Retired Pay at Age 60 (Twenty Year 
Letter). This document state, in part, “…If you do not submit your election within 90 
calendar days, you will not be entitled to survivor benefit coverage until you apply for 
retired pay at age 60. If you do not elect coverage and should die before age 60, your 
survivors will not be entitled to benefits. Enclosed is DD Form 1883 and detailed 
information about RC-SBP.”

b.	Orders C-05-107217, dated 16 May 2011, shows he was released from 7 Warrior 
Training Brigade and voluntary reassigned in the USAR and assigned to the Retired 
Reserve, effective 1 September 2011.

c.	Orders C05-193255, issued by HRC, dated 13 May 2021, shows he was retired 
and placed on the retired list on 24 June 2021.

d.	DA Form 2656, dated 24 June 2021 reflects:

*	he was married on 7 December 1984
*	he elected Option “A”: Previously declined to make an election until eligible to 
received retired pay  
*	He elected not to participate in SBP
*	He certified the form on 10 February 2021
*	His current spouse concurred SBP declination on 18 February 2021 and was 
witnessed by a notary on the same day

BOARD DISCUSSION:

1.  The applicant's request for a personal appearance was carefully considered. In this 
case, the evidence of record was sufficient to render a fair and equitable decision. As a 
result, a personal appearance before the Board 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 military record, the Board determined that relief was warranted. The Board  
carefully considered applicant’s contentions, military record, regulatory guidance and 
the Agency Legal Review.  The Board concurred with the review in that the applicant 
received erroneous information regarding the election of RCSBP.  As the result of 
having received the incorrect guidance, his status defaulted to Option C, immediate 
RCSBP coverage for the spouse, which was contrary to applicant’s wishes. Based on 
the preponderance of evidence available for review, the Board determined the evidence 
presented sufficient to warrant a recommendation for relief.



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:
 
1.The Board determined the evidence presented is 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 to show that the applicant 
timely declined Reserve Component Survivor Benefit Plan (RCSBP) and SBP coverage 
with spousal concurrence.  

2. The Board further determined that any monies paid as a result of the error should be 
repaid, the exact amount of which to be determined by the Defense Finance and 
Accounting Services. 
  

  


		  
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, the SBP, enacted 21 September 1972, provided that military 
members could elect to have their retired pay reduced to provide for an annuity after 
death to surviving dependents.  The election must be made prior to the effective date of 
retirement or else coverage automatically defaults to spouse coverage, if applicable.

2.  Public Law 95-397, enacted 30 September 1978, provided a way for RC members 
who qualified for 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. Three options were available:

*	Option A – elect to decline enrollment and choose at age 60 whether to start SBP 
participation
*	Option B – elect that a beneficiary receives an annuity if they die before age 60, 
but delay payment of it until the date of the member’s 60th birthday
*	Option C – elect that a beneficiary receives an annuity immediately upon their 
death if before age 60

3.  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 (cancellation or 
termination from the SBP begins the 25th month through the 36th month or the 3rd year 
of retirement). The spouse's concurrence is required. 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. No premiums will be refunded to those who opt to 
disenroll.

4.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required 
a spouse's written concurrence for a retiring member's election that provides less than 
the maximum spouse coverage.

5.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service), 
dated 1 July 1987, implements statutory authorities governing granting retired pay for 
Non-Regular service to Soldiers in the Army National Guard, Army National Guard of 
the United States, and U.S. Army Reserve. Chapter 3 (RCSBP) provides policies and 
procedures for implementing Public Law 95-397.

a.	Chapter 3-2d states should the soldier elect Option A or fail to return DD Form 
1883 within the prescribed time period, and die before reaching age 60, the survivors 
will not receive benefits under Public Law 95–397.
b.	Chapter 3-2e states, failure of soldier to initially elect coverage at this time does 
not preclude eligibility to subsequently elect survivor benefit coverage under the SBP 
with application for retired pay upon reaching age 60.

c.	Paragraph 3-3c (Policies Regarding Notification of RCSBP Options) states the 
SBP forms and information become time sensitive when received by the Soldier. Those 
distributed by mail will request the return of an enclosed acknowledgment of receipt 
card to ensure control of the 90-day suspense period.

6.  Title 10, USC, section 1448 governs the SBP and states in:

	a.  Section 1448(a)(1), the program established by this subchapter shall be known 
as the SBP. The following persons are eligible to participate in the Plan: Persons 
entitled to retired pay and persons who would be eligible for reserve-component retired 
pay but for the fact that they are under 60 years of age.

	b.  Section 1448(a)(4)(B) Reserve-component annuity; an election under 
paragraph(2)(B) is irrevocable if not revoked before the end of the 90-day period 
referred to in that paragraph.

7.  DFAS website states, you can discontinue your SBP coverage during the third year 
(from the 25th month through the 36th month) of retirement. As with declining SBP 
coverage at retirement, spousal concurrence is required. This election must be made on 
a DD Form 2656-2 (SBP Termination Request) and cannot be signed, dated, or 
received by DFAS prior to the 25th month of retirement.

8.  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 ABCMR will decide cases on the 
evidence of record. It is not an investigative body. The applicant has the burden of 
proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 states 
applicants do not have a right to a formal hearing before the ABCMR. The Director or 
the ABCMR may grant a formal hearing whenever justice requires.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220001677


1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1