IN THE CASE OF: BOARD DATE: 12 October 2023 DOCKET NUMBER: AR20230003925 APPLICANT REQUESTS: in effect, correction of her records to show she declined participation in the Reserve Component Survivor Benefit Plan (RCSBP). 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) * U.S. Army Human Resources Command Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), 1 December 2005 * Headquarters, Military Intelligence Readiness Command, Orders 05-355-00006, 21 December 2005 FACTS: 1. The applicant states she did not request enrollment in the RCSBP. She does not recall any information regarding Survivor Benefit Plan (SBP) premiums being withdrawn from her retired pay. She was only aware of the deductions once she started receiving her retired pay at age 60. She is not sure what RCSBP coverage is for. She does not wish to pay for SBP coverage. 2. The U.S. Army Human Resources Command memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 1 December 2005, notified the applicant that she completed the required qualifying years of Reserve service 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 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. (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. (2) Enroll children only. You must notify this Command, using the DD Form 2656-5, Reserve Component Survivor Benefit Plan (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 this 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 YOUR SPOUSE AND CHILD(REN). You may contact this Command for answers to specific individual questions by dialing 1-800-318-5298, extension 4. 3. Headquarters, Military Intelligence Readiness Command, Orders 05-355-00006, 21 December 2005, retired her and placed her on the Army of the United States Retired List in the retired grade of specialist effective 19 January 2006. 4. Her DD Form 2656 (Data for Payment of Retired Personnel) shows in: a. Section I (Pay Identification), block 4 (Retirement/Transfer Date), 19 January 2006; b. Section V (Designation of Beneficiaries for Unpaid Retired Pay), block 16 (Beneficiaries or Beneficiaries Information), she did not list any beneficiaries; c. Section VI (Federal Income Tax Withholding Information), block 17 (Marital Status), she placed a check mark in the "Single" box; d. Section X (SBP Election): * block 33 (Reserve Component Only), she placed a check mark in Option C (Previously Elected or Defaulted to Immediate RC-SBP Coverage) * block 34 (SBP Beneficiary Categories), she annotated "not applicable (N/A)" * block 35 (SBP coverage), she annotated "N/A" e. Section XI (Certification): * block 39 (Member), she annotated "N/A" * block 40 (Witness), she annotated "N/A" 5. She reached age 60 in April 2022. 6. The letter from the Defense Finance and Accounting Service, 15 November 2022, informed her that her SBP deduction could not be stopped. On or around 1 December 2005, she received her notice to make an election for RCSBP coverage. Since no election was received within 90 days of receipt of the letter, her coverage was started with her eligible beneficiary at the time of the 90-day letter, which was a child. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, a majority of the Board found relief is warranted. 2. A majority of the Board found the applicant’s 20-Year Letter did not adequately advise her that she could be automatically enrolled in the RCSBP when her only eligible dependent was a child. A majority of the Board determined the applicant’s record should be corrected to show she declined RCSBP coverage in a timely manner. 3. The member in the minority found insufficient evidence of error or injustice in the automatic RCSBP enrollment. The member in the minority determined the evidence does not support the requested relief. 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 records of the individual concerned be corrected by showing she declined RCSBP coverage in a timely manner following issuance of her 20-Year Letter. 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. 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 of it until the date of the member's 60th birthday; (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 – it 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 die prior to age 60. 3. 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. 4. 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. 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). 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. 5. The Defense Finance and Accounting Service website defines "gray area" retirees as Reserve Component 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 begin 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 assigned to the Retired Reserve. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003925 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1