IN THE CASE OF: BOARD DATE: 21 Marc 2023 DOCKET NUMBER: AR20220008002 APPLICANT REQUESTS: in effect, correction of his records to show he elected Reserve Component Survivor Benefit Plan (RCSBP) coverage for his spouse within 1 year of his marriage. 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) * Self-authored Letter, 15 April 2022 * Marriage Certificate, 16 May 2019 FACTS: 1. The applicant states he wishes to update his Survivor Benefit Plan (SBP) coverage to show his wife, as his designated beneficiary. He married on 16 May 2019 and notified the Defense Enrollment Eligibility Reporting System (DEERS) on 4 June 2019 since he had no other method to notify the Army or the Defense Finance and Accounting Service (DFAS). He was a "gray area" retiree and did not receive any counseling regarding a separate notification to DFAS. 2. His self-authored letter, 15 April 2022, notes, in part: a. DFAS U.S. Military Retired Pay has incorrectly denied him SBP coverage due to not reporting his marriage within 1 year. b. He would like to appeal this decision and have his records corrected to cover his wife under the SBP. c. He was not married at the time of his retirement on 3 March 2007 and listed his son, as his SBP beneficiary. He has recently learned that his son has "aged out," as he is 21 years old with a birthdate in d. Due to being a "gray area" retiree, he was not afforded any counseling regarding any changes or updates to his status. He believes enrollment of his wife in DEERS constituted notification of his marriage, since he had no other method to notify the Army. e. DFAS has been and continues to deduct $14.63 each month for coverage that is not provided. When he speaks to a DFAS representative or a Retirement Services Officer, he gets conflicting answers. 3. The Joint Force Headquarters, Alabama National Guard, memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 1 November 2006, notified him that he completed the required qualifying years of service for retired pay upon application at age 60. Paragraph 3 states: Public Law 95-397, 30 September 1978, created the Reserve Components [sic] Survivor Benefit Plan (RCSBP), in which you are entitled to participate. RCSBP is your sole means of protecting your retired pay entitlement. NOTE: Public Law 106-398, 30 October 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 different coverage is selected within 90 days of receipt of this letter. Notarized spousal concurrence is required in order to decline full and immediate coverage for annuitants. FAILURE TO MEET THIS REQUIREMENT WILL RESULT IN THE RETENTION OF FULL COVERAGE FOR YOUR SPOUSE AND CHILD(REN). If you elect to remain covered under the automatic provision of Law you must provide this Command written correspondence (the enclosed DD Form 2656-5 (formally [sic] DD Form 1883 [Survivor Benefit Plan Election Certificate]) is required) stating who you have designated as annuitants(s). The cost of this participation will commence upon your receipt of retired pay at age 60. Detailed information concerning RCSBP program and cost is enclosed. You must contact this Command for answers to specific individual questions. 4. His National Guard Bureau (NGB) Form 23A (Army National Guard Current Annual Statement), prepared 1 November 2006, shows his highest rank/grade held as captain/O-3 and shows his creditable service for retired pay as 20 years. 5. His DD Form 2656-5 (RCSBP Election Certificate), 1 December 2006, shows in: a. Section II (Marital/Dependency Status), block 7 (Are You Married?), he placed an "X" in the "No" box; and in block 8 (Do You Have Any Dependent Children?), he placed and "X" in the "Yes" box; b. Section III (Spouse/Dependent Child(ren) Information), he listed one child, c. Section IV (Coverage), block 12 (Options), he placed an "X" in the box by the statement: "Option C (Immediate Annuity). I elect to provide an immediate annuity beginning on the day after the date of my death, whether before or after age 60"; d. Section IV, block 13 (Type of Coverage), he placed an "X" in the box by the statement: "Child(ren) Only"; e. Section V (Level of Coverage), he placed an "X" in the box by the statement: "Full Retired Pay"; and f. Section IX (Member's Signature), he signed the form on 1 December 2006 and his signature was witnessed in on the same date. 6. His NGB Form 22 (National Guard Report of Separation and Record of Service) shows he was honorably discharged and transferred to the Retired Reserve in the rank of sergeant effective 3 March 2007. He completed 11 years, 4 months, and 23 days of net service during this period; with 8 years, 7 months, and 22 days of prior Reserve Component service; and 4 years, 3 months, and 3 days of prior active federal service. He completed 20 years, 4 months, and 23 days of total service for retired pay. 7. Joint Force Headquarters, Alabama National Guard, Orders 198-527, 17 July 2007 honorably discharged him from the Army National Guard and assigned him to the U.S. Army Reserve Control Group (Retired Reserve) in the retired grade of captain effective 3 March 2007. 8. His Marriage Certificate, 16 May 2019, shows he married on that date. His records do not contain and he did not provide his marriage license showing prior marriages, if any, or a divorce decree showing whether he was court-ordered to provide SBP coverage for a former spouse. 9. U.S. Army Human Resources Command Orders C11-197490, 30 November 2021, retired him and placed him on the Army of the United States Retired List in the retired grade of captain effective 16 December 2021. 10. He reached age 60 in 11. The email correspondence from a DFAS pay technician (Army Review Boards Agency Assistance), 3 March 2023, noted the applicant currently has RCSBP child-only coverage. The child has a birthdate in. The DFAS database contains: a. the Joint Force Headquarters, Alabama National Guard, memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 1 November 2006; b. the same DD Form 2656-5, 1 December 2006, described above; c. Joint Force Headquarters, Alabama National Guard, Orders 198-527, 17 July 2007, assigning him to the Retired Reserve; d. his Marriage Certificate, 16 May 2019; e. his DD Form 108 (Application for Retired Pay Benefits), 26 March 2021, requesting retired pay beginning 2 January 2022; f. his NGB Form 23B (Army National Guard Retirement Points History Statement), prepared 4 May 2021, showing his highest rank/grade held as captain/O-3 and his creditable service for retired pay as 20 years, 4 months, and 23 days; g. his DD Form 2656 (Data for Payment of Retired Personnel), 26 May 2021, showing in: (1) Part I (Retired Pay Information), Section I (Pay Identification), block 4 (Retirement/Transfer Date), he listed 16 December 2021; (2) Part III (SBP), Section IX (Dependency Information), block 31 (Spouse), he listed as his spouse with a marriage date of 16 May 2019; (3) Part III, Section X (SBP Election), block 34 (SBP Beneficiary Categories), he placed an "X" in the box by the statement: "I elect coverage for spouse only" and an "X" in the "No" box by the statement: "I have dependent children"; (4) Part III, Section X, block 35 (SBP Level of Coverage), he placed an "X" in the box by the statement: "I elect coverage based on full gross pay"; (5) Part IV (Certification), Section XI (Certification), he signed the form on 26 May 2021 and his signature was witnessed on the same date in h. the U.S. Army Human Resources Command letter, 30 November 2021, approving his application for retired pay; i. U.S. Army Human Resources Command Orders C11-197490, 30 November 2021, retiring him and placing him on the Army of the United States Retired List in the retired grade of captain effective 16 December 2021; j. his self-authored letter to DFAS U.S. Military Retired Pay, 22 January 2022, stating he was not aware his son would "age out" of the SBP annuity and requesting designation of his wife as his SBP beneficiary; k. the DFAS U.S. Military Retired Pay letter, 16 March 2022, notifying him that his SBP request could not be processed because his original election received on 2 December 2021 was invalid. The reason for the invalid request was his election to provide spouse coverage was not received within 1 year from the date of marriage; and l. miscellaneous documents from his military service. 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 claims he was ill-informed by Army/DOD personnel regarding the requirement to add his spouse as an RCSBP beneficiary within 1 year of marriage to his new spouse. The law stipulates that a member who had no eligible spouse at [Notice of Eligibility] (and was not required to elect former spouse coverage) and later marries may elect RCSBP spouse coverage. The election must be made and received within one year of the marriage. Failure to make the election within one year terminates eligibility for that spouse and any subsequent spouse. The Board accepted the applicant’s argument that due to being a "gray area" retiree, he was not afforded any counseling regarding any changes or updates to his status. He also believed, incorrectly, that enrollment of his wife in DEERS constituted notification of his marriage, since he had no other method to notify the Army. Based on the preponderance of the evidence, the Board determined an injustice occurred. ? 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 elected to add his spouse as an RCSBP beneficiary within 1-year of his marriage to his new spouse and timely submitted it to the appropriate office * showing the appropriate office timely received, accepted, and process his election 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 very specific 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, the RCSBP, enacted 30 September 1978, provided a way for those 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. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment until the date of the member's 60th birthday; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does not occur before age 60, the RCSBP costs for Options B and C are deducted from the member's retired pay (costs for Option C being the more expensive). Once a member elects either Option B or C in any category of coverage, that election is 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 coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. 3. Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child. 4. 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. 5. 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. 6. Department of Defense 7000.14-R (Financial Management Regulation), volume 7B, chapter 54, paragraph 6.1.2. (June 2022), provides that a member who had no eligible spouse upon notification of eligibility (and was not required to elect former spouse coverage) and later marries may elect RCSBP spouse coverage as follows: If the member elected to participate in the RCSBP upon notification of eligibility (i.e., elected Option B or C for a child or insurable interest), the member may elect to add spouse coverage to child coverage or terminate insurable interest beneficiary coverage in favor of spouse coverage. The election must be made on a DD Form 2656-6 (SBP Election Change Certificate) and received within 1 year of the marriage. The level of coverage cannot be changed. The member is not required to have the concurrence of the new spouse to elect not to add spouse coverage. Failure to make the election within 1 year of marriage terminates eligibility for that spouse and any subsequent spouse. 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. 8. 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. 9. DEERS is a computerized database of military sponsors and eligible family members who are entitled to benefits under the law, such as medical care, post exchange privileges, and commissary privileges, among other benefits. Informing sponsors about SBP updates is not the responsibility of DEERS. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008002 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1