IN THE CASE OF: BOARD DATE: 21 March 2023 DOCKET NUMBER: AR20220007932 APPLICANT REQUESTS: * correction of his records to show he and his wife declined participation in the Reserve Component Survivor Benefit Plan (RCSBP) * 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). FACTS: 1. The applicant states he never intended to enroll in the RCSBP and was under the impression that his non-election within 90 days after receipt of his 20-year letter was the appropriate manner to decline the RCSBP. a. He did not have the benefit of or opportunity to attend retirement counseling during the 90-day period as he was mobilized under contingency operations orders and assigned to a high operating tempo directorate at U.S. Central Command (CENTCOM) as an operational planner. Due to the pandemic, his section was tasked to form the CENTCOM Coronavirus Disease-2019 Operational Planning Team (OPT) from approximately April 2020 through September 2020. It was created to inform and provide analytics to the Commander of operational impacts to the force within the CENTCOM area of responsibility. Concurrently, the OPT would draft an exercise order for the benefit of component commands regarding command directives supporting Coronavirus Disease-2019 protocols. While conducting the OPT, he was also a non-resident student in the senior service Army Command and General Staff College. This all occurred during the 90-day window following receipt of his 20-year letter. These operations, schooling, and Command and General Staff College demands precluded his ability to receive retirement counseling. b. When he decided to submit his application for retirement in April 2022, a retirement counselor told him that because a selection had not been made within 90 days of receipt of his 20-year letter in 2020, he must elect the option to participate in the RCSBP on the DD Form 2656 (Data for Payment of Retired Personnel). This does not appear to be correct information as he believes the instructions support his non- election in 2020 as a binding decision to decline the RCSBP. Notwithstanding, he and his spouse, abide by their decision as a married couple of over 24 years to decline the RCSBP in its entirety 2. Following enlisted and commissioned warrant officer service in the U.S. Army Reserve, he was appointed as a Reserve commissioned officer of the Army on 28 February 2002. 3. His records do not contain a marriage license or certificate; however, his records contain a birth certificate showing was born on to the applicant and (maiden name). 4. He was ordered to active duty on 18 November 2018 for contingency operation- active duty operational support in support of the Operation Enduring Freedom- Contracting Support Brigade with duty at U.S. Army Central Command, MacDill Air Force Base, FL. His home address is shown as 5. The U.S. Army Human Resources Command memorandum (Notification of Eligibility for Retired Pay for Non-Regular Retirement (20-Year Letter)), 13 May 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 7 stated: Public Law 95-397, 30 Sep 78 [30 September 1978], created the Reserve Component Survivor Benefit Plan (RCSBP), in which you are now entitled to participate. RCSBP is the sole means of protecting your retired pay entitlement. Before making an election, contact the nearest Retirement Services Office: https://soldierforlife.army.mil/Retirement for assistance. Note: Public Law 106-398, 30 Oct 00 [30 October 2000], requires that upon receipt of this letter, a qualified Reserve (RC) member who is married will automatically be enrolled in the RCSBP under Option C below, Spouse and Child(ren) coverage based on Full Retired Pay, UNLESS spouse concurrence is provided (and witnessed by a notary) to allow one of the following elections: Option A (defer enrollment until age 60 when you apply for retired pay). Under this option, if you die before you are officially retired and in receipt of retired pay, your survivors will not be entitled to any financial benefit based on your retired pay. Option B (enroll now with the death annuity paid to your designated beneficiary when you would have been age 60, if you die before age 60). Option C (enroll with the death annuity paid immediately upon notification of your death, regardless of your age). You must notify this command, using the DD Form 2656-5, RCSBP Election Certificate, of your decision within 90 days of the date of this memorandum, a copy of DD Form 2656-5 and other RCSBP pertinent forms are provided with the enclosed RCSBP booklet. It is strongly recommended that regardless of your RCSBP election, you complete DD Form 2656-5 and return the form in a timely manner so the Army has a record of your designated beneficiaries by name and social security number. If you have been mobilized and deployed OCONUS [outside continental United States], you or your spouse may notify this command in writing, of your mobilized status and request a deferment of the RCSBP election requirement. Upon receipt of the written request, accompanied by the mobilization/active duty OCONUS deployment order, you will be granted a deferment. The deferment will end 90 days after termination of your mobilization. At that time, you must have notified this command of your election. Failure to do so will result in automatic coverage for spouse and child(ren) under option C. The cost for participation in the RCSBP will commence upon your receipt of retired pay. Detailed information concerning the RCSBP program, and its cost is enclosed. ANY RCSBP ELECTION OF A MARRIED SOLDIER THAT DOES NOT PROVIDE FULL COVERAGE FOR SPOUSE UNDER OPTION C REQUIRES SIGNATURE OF THE SPOUSE AND SOLDIER WITNESSED BEFORE AND BY A NOTARY PUBLIC. FAILURE TO MEET THIS REQUIREMENT WILL RESULT IN FULL COVERAGE FOR SPOUSE AND CHILD(REN) UNDER OPTION C. You may contact your local retirement service office at https://soldiersforlife.army.mil/Retirement for assistance. 6. His military 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. 7. His DD Form 108 (Application for Retired Pay Benefits), 14 March 2022, requested retired pay beginning 30 June 2022. 8. U.S. Army Human Resources Command Orders C-04-206190, 28 April 2022, reassigned him to the Retired Reserve by reason of completion of 20 or more years of Reserve duty effective 20 June 2022. 9. He was released from active duty on 20 June 2022. He completed 3 years, 7 months, and 7 days of active service during this period. 10. His DD Form 2656, 29 June 2022, with auxiliary documents, shows in: a. Part I (Retired Pay Information), Section I (Pay Identification), block 4 (Retirement/Transfer Date), he listed 30 June 2022;? b. Part III (SBP), Section IX (Dependency Information), block 31 (Spouse), he listed as his spouse; c. Part III, Section X (SBP Election), block 35 (Reserve Component Only), he checked "Option A. Previously declined to make an election until eligible to receive retired pay"; d. Part III, Section X, block 34 (SBP Beneficiary Categories), he placed an "X" in the box by the statement: "I elect not to participate in SBP"; e. Part IV (Certification), Section XI (Certification), he signed the form on 29 June 2022 and his signature was witnessed on the same date in f. Part V (Spouse SBP Concurrence) (Note: Required ONLY when the member is married and elects either: (a) child only SBP coverage, (b) does not elect full spouse SBP coverage; or (c) declines SBP coverage. This is not required for any former spouse or former spouse and child elections. The date of the spouse's signature in Item 43.c. MUST NOT be before the date of the member's signature in Item 41.c., or on or after the date of retirement listed in Part I, Section I, Item 4. The spouse's signature MUST be notarized. Electronic signatures are allowed.), Section XII (SBP Spouse Concurrence), block 41 (Spouse), his spouse signed the form on 22 June 2022 before a notary public. 11. U.S. Army Human Resources Command Orders C10-297952, 17 October 2022, retired him and placed him on the Army of the United States Retired List effective 21 June 2022. 12. The email correspondence from a Defense Finance and Accounting Service (DFAS) pay technician (Reply: Army Review Boards Agency Assistance), 24 February 2023, notes the applicant has spouse and child coverage and shows his spouse as and a child's birthdate of. The DFAS database contains: a. a certificate of birth, , showing the name and birth of his daughter; b. U.S. Army Human Resources Command memorandum (Notification of Eligibility for Retired Pay for Non-Regular Retirement (20-Year Letter)), 13 May 2020; c. the same DD Form 108, 14 March 2022, described above; d. U.S. Army Human Resources Command Orders C-04-206190, 28 April 2022, assigning him to the Retired Reserve; e. the same DD Form 2656, 29 June 2022, described above; f. the DA Form 5016 (Chronological Statement of Retirement Points), 7 September 2022, listing his qualifying years for retirement as 22 years, 7 months, and 10 days; g. the U.S. Army Human Resources Command letter, 17 October 2022, approving his application for retired pay; and h. U.S. Army Human Resources Command Orders C10-297952, 17 October 2022, retiring him and placing him on the Army of the United States Retired List effective 21 June 2022. 13. The applicant will reach age 60 in . (Note: It appears he qualified for early retirement under the provisions of the National Defense Authorization Act for 2008 (reduced retirement age).) 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 applicant claims as “error” or “injustice” the fact that he assumed that his inaction regarding RCSBP elections shortly after receiving his 20-year letter (aka NOE) should have been interpreted by the Army and DOD as an affirmative declination of RCSBP coverage. He also complains that the OPTEMO at his duty station at the time (MacDill AFB, FL) was too severe to allow him to be properly counseled about the RCSBP program. The Board is not convinced that these assertions are compelling reasons to grant relief, especially when one considers the effects of the applicant’s inaction in this regard are clearly explained in the 20-year letter the applicant received on or about 13 May 2020. Lastly, the SBP rules permit the applicant to obtain the outcome he seeks, which is a complete termination of his and his family’s SBP participation. The applicant may terminate his and his family’s SBP participation during the 1-year time window beginning on the second anniversary of the date on which his retired pay started. For the applicant, this window starts in June 2024. This window may be later than the applicant wishes, but the applicant’s own inaction and his own lack of diligence has placed him this situation. Consequently, the Board determined no error or injustice occurred in this case. ? 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. 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. The National Defense Authorization Act for 2008 reduced the retirement age for Reserve Component and National Guard Soldiers from 60 to a lesser age, but not below age 50, for those who have served on active duty in an eligible status on or after 29 January 2008. a. For qualifying service on or after 29 January 2008, each day on that active duty tour could count toward a reduction in retirement age. Active duty, for this purpose, means service pursuant to a call or order to active on orders specifying, as the authority for such orders, a provision of law referred to in section 101(a)(13)(B), and performed under sections 688, 12301(a), 12302, 12304, 12305, 12406, and chapter 15 (insurrection), or under section 12301(d) of Title 10, U.S. Code. b. Even though each day counts, days are credited in aggregates of 90 days only within any fiscal year. During any fiscal year, a Reserve Component member can accrue 90 days of early retirement. Fewer days will not count or be carried over to the next fiscal year and more days past 90 will not count and will not be carried over to the next fiscal year. That 90-day period does not have to be continuous. It could be the sum of more than one mobilization, so long as it meets the U.S. Codes within that fiscal year. 10. "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. 11. 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) AR20220007932 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1