IN THE CASE OF: 
BOARD DATE: 27 September 2023 
DOCKET NUMBER: AR20230004494 


APPLICANT REQUESTS: correction of his DD Form 2656 (Data for Payment of Retired Personnel to show: 

•the date of marriage as reflected on the Certificate of Marriage

•in effect, update the correspondence address and phone number

•his Reserve Component Survivor Benefit Plan (RCSBP) election as option A(Spouse Only) instead of option C (Child(ren) Only)



APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 

•Three DD Forms 149 (Application for Correction of Military Record)

•Self-Authored Statement

•Notice of Decision – Motion for Springing Guardianship dated 1 June 2018

•Guardian Over the Person and Estate Order dated 31 January 2018

•U.S. Army Human Resources Command (HRC) Retired Pay Letter, 29 July 2020

•Retiree Account Statements (14 pages)

•IADT Order Number 183-7 dated 8 September 1980

•Orders 04-349-00005 dated 14 October 2004

•Orders C07-096831 dated 29 July 2020

•Notification of Eligibility (NOE) for Retired Pay at Age 60 (Twenty Year Letter)

•Applicant Identification (ID) Cards

•Certificate of Live Birth

•Certificate of Marriage

•Spouse’s Certificate of Live Birth

•Spouse’s ID Cards

•DD Forms 214 (Certificate of Release or Discharge from Active Duty)




FACTS: 

1. The applicant has signed the DD Form 149 along with his spouse, Mrs. . He states:



a. He seeks correction to his current address. He provides an itemized listing ofcurrent deductions from his retirement pay to include insurance, medical, and RCSBP. The applicant further notes he would like his daughter, , born in 1987, removed from his RCSBP. She is well above minor age, has married, and has resided in her own home since 2005 with four children. She has never been disabled and he rarely get to see her or her children. She has not provided him with assistance with his current challenges.  b. It has always been his wife, , that has taken care of his affairs per his wishes and takes care of him with all of his challenges. They have lived together for 28 years and married now for 20 years. It is his desire and his wish to make his wife the beneficiary of his RCSBP and his retirement pay, if he should pass on some day. He also wants to ensure his wife receives anything that he may be entitled to by the U.S. Army, to include his “OSGLI,” as long as he can afford the cost. Additionally, he asks that the date of marriage be corrected as it currently shows 1 and the correct date is , as listed on the Certificate of Marriage. In summary, he requests the below listed corrections of his RCSBP be mailed to him: 





•remove his daughter, , and add his wife,  as the beneficiary•correct the date marriage•confirm the address and telephone number are correct



2.Department of the Army, U.S. Army Reserve Personnel Command (Notification ofEligibility for Retired Pay at Age 60 (20-Year Letter)), 10 October 2001, notified him thathaving completed the required years of qualifying service, he was eligible for retired payupon application at age 60 in accordance with statutory guidance. Paragraph 4 states:

Public Law 95-397, 30 September 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 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 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).
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 1883, Survivor benefit Plan -Election Certificate found in the enclosed booklet, of your decision within 90 days of the date of the letter. If you elect to remain covered under the automatic provision of the Law, you must provide this Command written correspondence (the enclosed DD Form 1883 is preferred) stating who you have designated as your spouse and child(ren) annuitant(s). 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. 





4.On 12 February 2003 the applicant married .5.Judicial Branch Notice of Decision, 1 June 2018, shows  was granted her Motion of Springing Guardianship of the applicant. All rights (except driving vehicles, boats, etc.) are restored the [applicant] on a temporary basis pending further hearing and order, conditional on guardian resuming such rights and authority immediately upon further incapacity notice to the court.6.The Defense Retiree and Annuitant Pay System shows on 16 June 2020 the applicant completed DD Form 2656 (Data for Payment of Retired Personnel). He indicated he was married to  and had no dependent children. DD Form 2656 further shows the applicant elected “option C (Previously elected or default to immediate RCSBP coverage). He did not elect an SBP beneficiary category nor an SBP level of coverage. The applicant and a witness signed and dated DD Form 2656.


BOARD DISCUSSION: 



1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was warranted. The Board carefullyconsidered the applicant's record of service, documents submitted in support of thepetition and executed a comprehensive and standard review based on law, policy andregulation. Upon review of the applicant’s petition and available military records, theBoard determined the applicant was not married with one dependent child when hereceived notification of eligibility for his reserve component retirement in 2001. Theapplicant has exhausted all his administrative remedies and the Board agreed aninjustice occurred while he attempted to correct his record by adding his currentspouse.2.The Board determined correction of the applicant’s election is warranted and agreedthat changing his initial election from automatic option C child-only RC SBP coverage tooption A for spouse-only RC SBP coverage. Further, the Board agreed the recordshould be corrected to show the election was made and approved in a timely manner tobe in accordance with public law.

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 elected Option A for election at retirement for spouse only SBP coverage.



Microsoft Office Signature Line...
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.Army Regulation 15-185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy acting through the ABCMR. The ABCMR begins its consideration of each casewith the presumption of administrative regularity. The applicant has the burden ofproving an error or injustice by a preponderance of the evidence. The ABCMR may, inits discretion, hold a hearing (sometimes referred to as an evidentiary hearing or anadministrative hearing) or request additional evidence or opinions. Applicants do nothave a right to a hearing before the ABCMR. The Director or the ABCMR may grant aformal hearing whenever justice requires.
 
2.  Public Law 92-425, enacted 21 September 1972, established the Survivor Benefit Plan (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. 
 
3.  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. A member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP. 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 


 
4.  Army Regulation 600-8-7 (Retirement Services Program), paragraph 4-6, states that between receipt of the notification of eligibility (20-year letter) and 60 days after receipt of the 20-year letter, Reserve Component Soldiers and spouses should be counseled on the RCSBP, 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. 
 
5.  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. 
 
6.  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//