IN THE CASE OF: BOARD DATE: 5 October 2023 DOCKET NUMBER: AR20230001165 APPLICANT REQUESTS: termination of his Survivor Benefit Plan (SBP) 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) * two Defense Finance and Accounting Service (DFAS) Letters * DFAS-Cleveland Form 7220/148 (Retirement Account Statement) * two SBP and Reserve Component Survivor Benefit Plan (RCSBP) Open Season Election to Discontinue Participation Forms, 24 May 2023 * Memorandum for Record (Spouse SBP Election Concurrence Statement), 26 May 2023 * DD Form 2656-2 (SBP Termination Request), 26 May 2023 FACTS: 1. The applicant states he would like to opt out of the SBP coverage for his spouse. He was not properly briefed on the requirement during his retirement out-processing. He and his wife have other life insurance policies at a cheaper rate. The rate of $375.57 per month from his retired pay is a financial hardship on his family as they already have life insurance at a cheaper rate. He contacted DFAS regarding cancelling his SBP coverage for his spouse and DFAS stated he had to submit an application to the Army Board for Correction of Military Records to have his SBP coverage cancelled. 2. The applicant married on. 3. Following prior enlisted service in the Regular Army, he was appointed as a Reserve commissioned officer of the Army on 5 December 2002. 4. The State of Nevada Office of the Military, Office of the Adjutant General, memorandum (Notification of Eligibility for Retired Pay for Non-Regular Service (20-Year Letter)), 5 November 2019, notified the applicant that he completed the required qualifying years of service for retired pay upon application at age 60. Paragraph 4 stated: 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. You must complete and return the enclosed DD Form 2656-5 using the enclosed stamped envelope. 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. 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]. 5. His DD Form 2656-5 (RCSBP Election Certificate), 30 March 2020, shows in: a. Section II (Marital Status), the name of his spouse as with a marriage date of ; b. Section III (Spouse/Dependent Children Information), he listed one son and two daughters with birthdates in 1998, 2002, and 2013; c. Section IV (Coverage): * block 12 (Options), he placed an "X" in the Option C (Immediate Annuity) box * block 13 (Type of Coverage), he placed an "X" in the Spouse Only box d. Section VIII (Member Signature), he signed the form on 30 March 2020 and his signature was witnessed on the same date. 6. On 30 September 2022, he retired from active duty as a member of the South Carolina Army National Guard in the rank/grade of lieutenant colonel/O-5 by reason of permanent disability. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 22 years, 7 months, and 2 days of total active service and 3 months and 10 days of inactive service. 7. Departments of the Army and Air Force, National Guard Bureau, Special Orders Number 91, 25 October 2022, transferred him to the U.S. Army Reserve Control Group (Retired Reserve) effective 30 September 2022. 8. He provided: a. two letters from DFAS, 1 March 2023 and 13 May 2023, notifying him that his request to discontinue SBP coverage was incomplete or invalid because one or more of the signatures were not notarized or witnessed by an SBP counselor; b. his DFAS-Cleveland Form 7220/148 (Retiree Account Statement) effective 22 May 2023; c. two SBP and RCSBP Open Season Election to Discontinue Participation Forms, 24 May 2023 and 26 May 2023, showing he elected to terminate his SBP coverage with spouse concurrence; d. his DD Form 2656-2 (SBP Termination Request), 26 May 2023, showing he elected to terminate SBP coverage with spouse concurrence; and e. a spouse concurrence letter, 26 May 2023, showing his spouse , , concurred with his decision regarding termination of his SBP election. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, a majority of the Board found relief is warranted. 2. A majority of the Board found it likely that the applicant was not fully informed of the cost of electing SBP coverage prior to his retirement. A majority of the Board determined the applicant’s record should be corrected to show he elected not to participate in the RCSBP with spousal concurrence within 90 days of his receipt of notification of eligibility for retired pay at age 60. 3. The member in the minority found insufficient evidence indicating the applicant was poorly informed about a long-established program that affects every retiring service member. The member in the minority determined the applicant’s election to participate in SBP was not in error and the premiums he now pays are not unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : 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 and Army National Guard records of the individual concerned be corrected by showing he elected not to participate in RCSBP with spousal concurrence within 90 days of his receipt of notification of eligibility for retired pay at age 60. 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. Elections are made by category, not by name. 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. 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 for disenrollment. 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. Department of Defense Instruction 1332.42 (Survivor Annuity Program Administration) states a member may elect to discontinue participation by submitting DD Form 2656-2 during the period that is more than 2 years but less than 3 years after the first date of entitlement to receive retired pay. The member must submit the request no earlier than the 1st day of the 25th month, and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable. A member electing to terminate coverage is not eligible for continuation in the Program; however, the member has 30 days after submitting a request to discontinue participation to revoke the request. 7. The National Defense Authorization Act for Fiscal Year 2023 includes an SBP open season. The SBP open season began on 23 December 2022 and ends on 1 January 2024. a. The SBP open season allows for retirees receiving retired pay, eligible members, or former members awaiting retired pay who are currently not enrolled in the SBP or RCSBP to enroll. For a member who enrolls during the SBP open season, the law generally requires that the member will be responsible to pay retroactive SBP premium costs that would have been paid if the member had enrolled at retirement (or enrolled at another earlier date, depending on the member's family circumstances). For retirees receiving pay, enrollment requires paying the premiums plus interest for the period since the date they were first eligible to enroll, as well as the monthly premiums moving forward. b. The SBP open season also allows eligible members and former members who are currently enrolled in either the SBP or RCSBP to permanently discontinue their SBP coverage. The law generally requires the covered beneficiaries to concur in writing with the election to discontinue. Previously paid premiums will not be refunded. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001165 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1