IN THE CASE OF: BOARD DATE: 31 January 2023 DOCKET NUMBER: AR20220006134 APPLICANT REQUESTS: in effect: * termination of her Reserve Component Survivor Benefit Plan (RCSBP) spouse coverage and * reimbursement of Survivor Benefit Plan (SBP) premiums already paid. 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) * Defense Finance and Accounting Service (DFAS) U.S. Military Retired Pay Letter, 21 July 2020 * DFAS U.S. Military Retired Pay Letter, 10 February 2022 FACTS: 1. The applicant states SBP premiums were deducted from her retired pay. She was never counseled about the SBP program and was rushed through the retirement process. She requests full reimbursement of the SBP premiums collected. 2. Following a period of enlisted service in the U.S. Army Reserve (USAR), she was appointed as a Reserve commissioned officer of the Army in the Nurse Corps and executed her oath of office on 2 February 1991. 3. The USAR Personnel Command memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 20 May 1998, notified her that she had completed the required years of qualifying Reserve service and was eligible for retired pay upon application at age 60 in accordance with statutory guidance. Paragraph 4 stated: You are entitled to participate in the Reserve Component Survivor Benefit Plan (RC-SBP) established by Public Law 95-397. This plan enables you to provide an annuity for your spouse, and other eligible beneficiaries. By law, you have only 90 calendar days from the date you receive this memo to submit your DD Form 1883, Survivor Benefit Plan-Election Certificate. 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. 4. She was promoted to the rank/grade of captain/O-3 effective 25 June 1998. 5. Her records are void of a DD Form 1883 (Survivor Benefit Plan Election Certificate) showing she made an RCSBP election within 90 days of receipt of her 20-year letter. 6. Headquarters, 77th U.S. Army Regional Readiness Command, Fort Totten, NY, Orders 04-127-00001, 6 May 2004, released her from her current assignment by reason of completion of 20 or more years of qualifying service for retired pay at age 60 and assigned her to the Retired Reserve effective 1 June 2004. 7. Her DD Form 108 (Application for Retired Pay Benefits), 26 October 2019, shows she applied for retired pay with a beginning date of 14 December 2019. 8. Her DD Form 2656 (Data for Payment of Retired Personnel), 26 October 2019, shows in: a. Section VI (Federal Income Tax Withholding Information), block 17 (Martial Status), she checked the "Married" box; b. Section IX (Dependency Information), block 29 (Spouse), she listed her spouse as with a marriage date of 26 June 1993; c. Section X (SBP Election), block 33 (Reserve Component Only (This section refers to the decision you previously made on the DD Form 2656-5 (RCSBP Election Certificate) 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), she placed an "X" in the box by the statement: "Option A – Previously declined to make an election until eligible to receive retired pay"; d. Section X, block 34 (SBP Beneficiary Category(ies)), she placed an "X" in the box by the statement: "I elect coverage for spouse only" and placed an "X" in the box "No" to the statement: "I have dependent child(ren)"; e. Section X, block 35 (SBP Level of Coverage), she placed an "X" in the box by the statement: "I elect coverage based on full gross pay"; and f. Section XI (Certification), block 39 (Member), she signed the form on 26 October 2019. Her signature was witnessed on the same date at the U.S. Army Human Resources Command, Fort Knox, KY. 9. She reached 60 years of age in December 2019. 10. U.S. Army Human Resources Command Orders C01-091101, 5 February 2020, retired her and placed her on the Army of the United States Retired List in the grade of captain effective 14 December 2019. 11. She provided: a. a DFAS letter, 21 July 2020, responding to her request to terminate her SBP coverage. DFAS noted the 1-year window to withdraw from the SBP requirement, starting with the 25th month through 36th month after first eligible to receive retired pay. DFAS noted that since she has only been retired for 6 months and she was not yet eligible to withdraw; and b. another DFAS letter, 10 February 2022, notifying her that DFAS received her request to terminate the SBP. She was informed that her request must be made on a DD Form 2656-2 (SBP Termination Form), with a service-designated SBP counselor with the installation name on the form, and the form must be notarized. She was also informed that once SBP coverage is terminated, she would not be able to elect SBP coverage in the future. 12. The email correspondence from a DFAS pay technician (Reply: Army Review Boards Agency Assistance), 19 December 2022, notes the applicant currently has no beneficiary – spouse excluded. Her SBP was terminated by her DD Form 2656-2 effective 19 August 2022. The applicant tried to terminate her SBP coverage from retirement; however, the documents filed prior to termination were invalid. The DFAS database contains the following documents: a. a DD Form 2656-6, 20 April 2020, noting her current coverage as "Spouse Only" and requesting suspension of her coverage. She listed her spouse, and signed this form before a notary public on 20 April 2020; b. a DD Form 2656-8 (SBP Automatic Coverage Fact Sheet) that determines marital and dependency status to correctly establish a service member's retired pay, 4 January 2022, showing she was married on with no dependent children; c. several self-authored statements requesting termination of her SBP coverage and reimbursement of premiums paid with a DFAS letter, 10 February 2022; d. her DD Form 2656-2 showing she and her spouse requested to discontinue participation in the SBP on 27 June 2022. She signed the form on 20 February 2022 and her spouse signed and dated the form before a notary public on 27 June 2022; e. a DFAS letter, 10 August 2022, notifying her that DFAS was unable to process her SBP request because the DD Form 2656-2 she sent was not properly notarized; and f. another DD Form 2656-2 showing she and her spouse again requested to discontinue participation in the SBP. She, her spouse, and a notary public signed the form on 1 March 2022. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. The applicant, who previously had Option A (decline until apply for retired pay) RCSBP coverage, elected spouse SBP coverage when she applied for retired pay in October 2019. She was placed on the retired list on 5 February 2020, after which, she almost immediately attempted to terminate / suspend the coverage. She ultimately terminated coverage with spousal concurrence in August 2022 in accordance with Title 10, U.S.C, section 1448a. However, termination only stops coverage and premiums moving forward and does not result in refund of premiums already paid. Although the Board determined there is no error, Board members agreed an injustice may have occurred as the applicant’s intent was clearly to not participate and she should not have to pay for a program neither she nor her spouse wanted. 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: 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 by * showing the applicant timely submitted a DD Form 2656 (SBP Election Statement) electing not to participate in the SBP, with spouse concurrence, on 4 February 2020 (or prior to receiving retired pay) * showing her request was timely received, accepted, and processed * refunding of SBP premiums deducted from the applicant’s retirement pay from February 2020 until the present time as a result of this correction 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; RCSBP coverage automatically converts to SBP coverage upon retirement. 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. The DFAS website states a retiree is free to cancel or terminate his/her SBP election beginning in the 25th month through the 36th month – or the third year – of retirement. Please note that this window is an exit only, not an entrance, meaning that it applies only to withdrawing from an unwanted election and does not allow retirees to begin an election that they had earlier declined. As with declining at retirement, spousal concurrence is required. 7. "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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006134 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1