IN THE CASE OF: BOARD DATE: 31 January 2023 DOCKET NUMBER: AR20220002530 APPLICANT REQUESTS: * correction of his records to show his Reserve Component Survivor Benefit Plan (RCSBP) election as Option A instead of Option C * termination of his RCSBP coverage 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). FACTS: 1. The applicant states that to the best of his knowledge, once his received his Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years) and DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate), he elected Option A, which was to decline to make an election until age 60. His records do not contain a copy of his DD Form 2656-5 in either the U.S. Army Human Resources Command or Defense Finance and Accounting Service (DFAS) databases. His retirement date is 31 January 2022 and he does not wish to participate in the SBP. The misplacement of his 20-year letter and DD Form 2656-5 led to his SBP coverage being defaulted to Option C. 2. Following enlisted service in the Regular Army and U.S. Army Reserve (USAR), he was appointed as a Reserve warrant officer of the Army and executed his oath of office on 26 March 1993. 3. His records contain a marriage certificate showing his marriage to on 10 September 1995. 4. The Joint Force Headquarters – Utah memorandum (Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years) (Reissue)), 23 November 2020, notified him that having completed the required years of service, he was eligible for retired pay upon application at age 60 in accordance with statutory guidance. Paragraph 4 stated, in part:? 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. 5. His records are void of a DD Form 2656-5 showing he made an RCSBP election within 90 days of receipt of his 20-year letter. 6. He reached age 60 in 7. His records show he submitted a DD Form 108 (Application for Retired Pay Benefits), 7 January 2022, with auxiliary documents, requesting retired pay beginning 1 February 2022. His application included a DD Form 2656 (Data for Payment of Retired Personnel), 7 January 2022, that shows in: a. Section IX (Dependency Information), item 29 (Spouse), he listed as his spouse; block 30 (Date of Marriage), he listed a date in 1995; and block 32 (Dependent Children), he listed a son born in b. Section X (SBP Election), block 33 (Reserve Component Only), he checked "Option C. Previously elected or defaulted to immediate RC-SBP Coverage (Do not make an election in Block 34 [SBP Beneficiary Categories], you have already elected coverage.) Note: If you were married at the time you were notified of eligibility for non- regular retirement and did not compete DD Form 2656-5, you defaulted to full coverage under OPTION C – do not make an election in Block 34)"; c. Section X, block 34 (SBP Beneficiary Categories), no election is marked; and d. Section XI (Certification), he signed the form on 7 January 2022 and his signature was witnessed by a Retirement Services Officer on the same date in 8. His National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service) shows he was honorably transferred to the Retired Reserve in the rank of chief warrant officer 5 by reason of resignation effective 31 January 2022. He completed 27 years, 11 months, and 12 days of net service during this period. He completed 35 years and 15 days of total service for retired pay and 41 years, 10 months, and 16 days of total service for pay. 10. Utah Army National Guard Orders 00018001078, 2 May 2022, transferred him to the U.S. Army Reserve Control Group (Retired Reserve) effective 1 February 2022. 11. U.S. Army Human Resources Command Orders C11-298158, 1 November 2022, placed him on the Army of the United States Retired List effective 1 February 2022 in the grade of chief warrant officer 5. 12. The email correspondence from a DFAS pay technician (Army Review Boards Agency Assistance), 5 January 2023, notes the applicant currently has SBP spouse and child coverage since his retirement date of 1 February 2022. The DFAS database contains: * the same DD Form 108, 7 January 2022, and DD Form 2656, 7 January 2022, as described above; * his NGB Form 23A (Army National Guard Current Annual Statement), 10 May 2022, that summarizes his retirement points; * the Joint Force Headquarters – Utah memorandum (Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years) (Reissue)), 23 November 2020; * his officer evaluation report covering the period 14 October 2019 through 13 October 2020; and * Utah Army National Guard Orders 00018001078, 2 May 2022, transferring him to the Retired Reserve. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board noted that the evidence shows the applicant failed to make an RCSBP beneficiary election when he received his 20-year letter in 2007. Because he was married at the time (and has remained married), coverage apparently defaulted to immediate spouse and child coverage. The applicant began receiving retired pay in February 2022. SBP premiums presumably began to be deducted from his retirement pay at that time. The Board noted that relief is not warranted for at least two reasons. First, spousal concurrence is necessary to divest the spouse of her existing SBP beneficiary coverage. The Board found no evidence that the applicant’s spouse concurs with his desire to terminate coverage. Second, the applicant may terminate his SBP coverage in the one-year period between the 2nd and 3rd anniversary of his initial receipt of retirement pay, assuming his spouse concurs with the termination. This one- year window does not begin for the applicant until February 2024. Beginning in February 2024, he will have the opportunity to obtain the remedy he seeks, assuming spousal concurrence. The Board determined the applicant has failed to demonstrate error or injustice by a preponderance of evidence. 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. 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, 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. 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 RCSBP automatically converts to SBP. 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 3. Title 10, U.S. Code, section 1448, requires 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 a 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 to disenroll. 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. 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 135-180 (Retirement for Nonregular Service), paragraph 4-1, states it is the responsibility of all qualified individuals to submit their application for retired pay no earlier than 9 months and no later than 90 days prior to the date retired pay is to begin. Applications must be submitted on a DD Form 108 and DD Form 2656. 8. Army Regulation 600-8-7 (Retirement Services Program), paragraph 4-6, states Reserve Component Soldiers and spouses should be counseled on the RCSBP between the member's receipt of the 20-year letter and 60 days after receipt of the 20-year letter, 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. 9. Periodically Congress authorizes an open enrollment season to allow retirees certain changes to their SBP participation or non-participation. The National Defense Authorization Act for Fiscal Year 2023 authorized an open enrollment season from 23 December 2022 through 1 January 2024. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002530 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1