IN THE CASE OF: BOARD DATE: 24 January 2023 DOCKET NUMBER: AR20220003402 APPLICANT REQUESTS: correction of her records to show she declined Reserve Component Survivor Benefit Plan (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 she never made an SBP election when she retired. She was told she had no option in the matter. She would have elected no coverage. 2. Following enlisted service in the Regular Army, she enlisted in the U.S. Army Reserve on 17 March 1998. She was promoted to the rank/grade of master sergeant/ E-8 effective 1 June 2006. 3. The U.S. Army Human Resources Command memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 6 December 2007, notified her that having completed the required years of qualifying Reserve service, she was eligible for retired pay upon application at age 60. Paragraph 4 states: Public Law 95-397, 30 Sep[tember] 1978, created the Reserve Component Survivor Benefit Plan (RCSBP), in which you are now entitled to participate. RCSBP is your sole means of protecting your retired pay entitlement. Note: Public Law 106-398, 30 Oct[ober] 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 spouse concurrence is provided to allow one of the following elections: a. Option A (defer enrollment until age 60 when you apply for retired pay). b. Option B (enroll and pay an annuity when YOU would have been age 60): (1) Enroll spouse or spouse and child(ren) at LESS THAN the maximum level, or (2) Enroll child(ren) only. c. Option C (enroll and pay an annuity immediately upon your death) but: (1) Enroll spouse or spouse and child(ren) at LESS THAN the maximum level; or (2) Enroll children only. You must notify this command, using the DD Form 2656-5, RCSBP Election Certificate, or DD Form 1883, Survivor Benefit Plan – Election Certificate, one of which is found in the enclosed booklet, of your decision within 90 days of the date of this letter. If you have been mobilized and deployed OCONUS [outside the continental United States], you or your spouse may notify this Command of your status and inability to make an election. During the period of your mobilization/active duty deployment you will automatically be covered under SBP for Spouse and Children. Upon receipt of a written request for deferment, accompanied by a copy of the mobilization/deployment order, you will be granted a deferment from election. The deferment will end 90 days following your release from active duty. At that time you must have notified this Command of your election or you will be automatically enrolled under Option C, Full Coverage, Spouse and Children. The cost for his participation will commence upon your receipt of retired pay at age 60. Detailed information concerning the RCSBP program and costs is enclosed. ANY WRITTEN CORRESPONDENCE (letter or forms) THAT INVOLVE A CHANGE FROM FULL COVERAGE UNDER OPTION C FOR SPOUSE REQUIRE THE SIGNATURE OF YOUR SPOUSE BEFORE A NOTARY, OR A RETIREMENT SERVICES OFFICER AND ONE OTHER WITNESS. FAILURE TO MEET THIS REQUIREMENT WILL RESULT IN THE RETENTION OF FULL COVERAGE FOR SPOUSE AND CHILD(REN). You may contact this Command for answers to specific individual questions by dialing 1-800-318-5298, extension 4. 4. Her records are void of a DD Form 2656-5 showing she made an RCSBP election within 90 days of receipt of her 20-year letter. 5. Her records do not contain a marriage license and she did not provide one. 6. The DA Form 4187 (Personnel Action), 28 January 2013, shows she requested voluntary retirement with a desired retirement date of 1 January 2014. Her DA Form 1506 (Statement of Service for Computation of Length of Service for Pay Purposes), 8 March 2013, shows she completed 23 years, 4 months, and 4 days of active federal service and 27 years, 1 month, and 26 days of total creditable service. 7. U.S. Army Human Resources Command Orders C-04-393423, 23 April 2013, retired her on 31 December 2013 and placed her on the Retired List in the retired grade of master sergeant effective 1 January 2014. 8. She was honorably retired by reason of sufficient service for retirement on 31 December 2013. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 9 years, 6 months, and 25 days of net active service during this period and 13 years, 9 months, and 9 days of total prior active service. 9. The email correspondence from a Defense Finance and Accounting Service (DFAS) pay technician (Army Review Boards Agency Assistance), 7 December 2022, states the DFAS database does not contain a DD Form 2656 for the applicant; therefore, she had automatic SBP spouse coverage since her retirement. The DFAS database contains: a. a Superior Court Judgment of Divorce with Property Settlement Attached, showing she and were married on , were granted a divorce on 23 December 2013, and noted the absence of children. The judgment and property settlement does not contain any provisions for spousal entitlement to SBP benefits; b. her DD Form 2656-6 (SBP Election Change Certificate), 2 April 2014, showing she marked her current coverage as "Spouse Only." She requested a change in coverage due to divorce and elected to suspend coverage. This form was signed and dated by the applicant and a witness on 2 April 2014. This form does not contain her former or current spouse's name; c. a Superior Court Final Judgment of Divorce with Stipulations of Settlement, showing she and were married on an unspecified date, were granted a divorce on , and noted the absence of children. The final judgment with settlement stipulations does not contain any provisions for spousal entitlement to SBP benefits; and d. her DD Form 2656-6, 7 March 2022, showing she marked her current coverage as "Spouse Only." She requested a change in coverage due to divorce and elected to suspend coverage. This form was signed and dated by the applicant and a witness on 7 March 2022. This form does not contain her former or current spouse's name. BOARD DISCUSSION: 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, her military records, and regulatory guidance were carefully considered. The applicant did not make an election upon receipt of her 20-year letter; therefore, she defaulted to automatic enrollment in the RCSBP. She was married when she received her 20-year letter and would have required spousal concurrence to decline coverage. She later took positive action to suspend her coverage each time she divorced, which essentially nullifies any request for cancellation/termination with reimbursement of paid premiums. Her spouse coverage might reasonably be suspended when she submitted her initial change form on 2 April 2014. Her spouse coverage would resume when she remarried; however, she did not provide her marriage license, so the date of remarriage is unknown. Her spouse coverage might reasonably be again suspended when she submitted her second change form on 7 March 2022. According to DFAS, if spouse coverage is elected and the spouse is lost through death or divorce, SBP coverage is suspended. If the member remarries and has not converted to former spouse coverage, three options are available. The member must notify DFAS of the desired option within 1 year of the new marriage. If the member fails to notify DFAS, option 1 below will automatically take effect on the first anniversary of the remarriage and the member will be responsible for premium costs beginning the first day of the 13th month. The three options are: (1) Resume the original level of spouse coverage; (2) Elect not to resume spouse SBP coverage, in which case the spouse will be notified, and the election cannot be changed, (3) Elect to cover an increased portion of retired pay. 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 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 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. Department of Defense Instruction 1332.42 (Survivor Benefit Plan) establishes policy, assigns responsibilities, and provides procedures for administration of the SBP, RCSBP, Special Survivor indemnity Allowance, and SBP Advisory Group. Paragraph 4.4a(3)(b) states a spouse becomes ineligible as a beneficiary and coverage is suspended upon divorce, dissolution, or annulment of marriage. It is important to note that transition from spouse coverage to former spouse coverage is not automatic upon divorce, dissolution, or annulment. Former spouse coverage must be elected in accordance with Section 5. A member who elects to provide former spouse coverage pursuant to a requirement contained in a court order or written agreement may not change or discontinue such coverage unless the applicable requirements of Section 5 have been satisfied. Failure to elect former spouse coverage in accordance with a court order, written agreement, or voluntary agreement will result in suspended spouse coverage. 8. Army Regulation 600-8-7 (Retirement Services Program), paragraph 4-6, states that between the receipt of the 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. 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) AR20220003402 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1