IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230004645 APPLICANT REQUESTS: * in effect, correction of his records to show he timely declined Reserve Component Survivor Benefit Plan (RCSBP) coverage * 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) * Self-authored Statement * Military Department of Arkansas Office of the Adjutant General Orders 266-888, 23 September 2009 * Army Board for Correction of Military Records (ABCMR) Docket Number AR20200001241 (pages 6 and 7 only), 19 January 2022 * ABCMR Memorandum for Office of the Surgeon General, 21 January 2022 * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), 4 August 2022 * National Guard Bureau (NGB) Form 23A (Army National Guard Current Annual Statement), 26 August 2022 * Headquarters, U.S. Army Physical Disability Agency, Orders D 256-67, 13 September 2022 * Headquarters, U.S. Army Physical Disability Agency, Letter, 14 September 2022 * DA Form 2656 (Data For Payment of Retired Personnel), 26 September 2022 * DD Form 2656-2 (SBP Termination Request), 14 July 2023 FACTS: 1. The applicant states he was wrongfully discharged in 2009 without an opportunity to participate in a medical evaluation board (MEB). In July 2022, he received notification from the Department of the Army informing him that the corrections to his military separation had been made, granting him permanent disability retirement retroactive to 24 June 2009. He was advised to go to the nearest installation for assistance completing a DD Form 2656, which he did in September 2022. The Soldier who assisted him in completing the form asked him for his personal information; she never asked if he wanted to decline or elect any type of coverage for anything. She stated that if he happened to die, his wife would continue to receive his retired pay. She never stated there was a cost associated with the SBP. He is happy his discharge was corrected but saddened that his retired backpay is being offset to pay for a benefit that his spouse wouldn't have received if he had died prior to September 2022. He now owes a monthly bill of $203. He was told when applying for Combat-Related Special Compensation (CRSC), that the retroactive pay only goes back 6 years. If he were separated correctly, he would have applied for or been able to apply for CRSC in 2009. If the Defense Finance and Accounting System warrants collecting SBP premiums back to 2009 for coverage he never elected, then surely he should be granted CRCS retroactive to 2009. 2. Following prior enlisted service in the Regular Army, he enlisted in the Army National Guard on 2 January 2002. 3. Military Department of Arkansas Office of the Adjutant General Orders 044-125, 13 February 2003, ordered him to active duty in support of Operation Enduring Freedom for a period of 12 months effective 11 February 2003. 4. On 23 June 2009, he was honorably discharged from the Arkansas Army National Guard. His NGB Form 22 (Report of Separation and Record of Service) shows the authority and reason for his separation and transfer to the Retired Reserve as National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35l(8), by reason of being medically unfit for retention. 5. On 24 June 2009, he received notification of his eligibility for retired pay at age 60 with 15 years of service. The memorandum stated his eligibility for retired pay at age 60 is in accordance with the provisions of the National Defense Authorization Act for Fiscal Year 1995, Public Law 103-337, section 517. a. To be eligible as a Selected Reservist, he must have: (1) completed at least 15 years of qualifying service on or after 1 October 1991. (2) no longer meet qualification for membership in the Selected Reserve solely because of physical disability; and that his disability was not the result of his intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary of the Army or was incurred during a period of unauthorized absence; and (3) satisfied the requirements of Title 10, U.S. Code, sections 1331(a) and new subsection (f), paragraphs (3) and (4) (i.e., he performed the last 6 years of qualifying service in accordance with section 1332), and requested transfer to the Retired Reserve. b. Paragraph 3 states: Public Law 95-397, 30 September 1978, created the Reserve Components 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 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 the Law you must provide this Command written correspondence (the enclosed DD Form 2656-5 [RCSBP Election Certificate] (formally [formerly] DD Form 1883 [SBP Election Certificate]) is required) stating who you have designated as annuitant(s). The cost for this participation will commence upon your receipt of retired pay at age 60. 6. His military records do not contain a DD Form 2656-5. 7. On 8 May 2019, he submitted an application to the ABCMR for correction of his records to show he was honorably retired after receiving a disability evaluation through the Disability Evaluation System (DES). 8. On 12 August 2021 in ABCMR Docket Number AR20200001241, the Board determined the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommended that all Department of the Army and Army National Guard records of the applicant be corrected by referring his records to the Office of the Surgeon General for review to determine if his case should be processed through the DES. a. If a review by the Office of the Surgeon General determines the evidence supports processing through the DES, the applicant will be afforded due process for consideration of any diagnoses identified as having not met retention standards prior to his discharge and transfer to the Retired Reserve. b. In the event that a formal PEB becomes necessary, the applicant will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be retired for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. d. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief without benefit of the review described above. 9. The Department of the Army Office of the Surgeon General memorandum for the ABCMR, 10 June 2022, states the Office of the Surgeon General endorsed the opinion provided by Dr. of the Fort Sill MEB Section. As a result, the medical evidence based on the review of the applicant's medical records indicated an MEB was warranted and the Fort Sill MEB Section had begun the board process. 10. His records contain a DA Form 199 showing a PEB convened at Joint Base San Antonio, TX, on 4 August 2022. The PEB determined he was physically unfit and recommended a disability rating of 70 percent and his placement on the Permanent Disability Retired List. 11. Headquarters, U.S. Army Physical Disability Agency, Orders D 256-67, 13 September 2022, released him from assignment by reason of permanent physical disability and placed him on the Retired List in the rank of sergeant first class effective 24 June 2009. 12. His DD Form 2656, 26 September 2022, shows in: a. Part I (Retired Pay Information), Section I (Pay Identification), block 4 (Retirement/Transfer Date), 24 June 2009; b. Part III (SBP), Section IX (Dependency Information), block 31 (Spouse), he listed with a marriage date of 24 September 2010; and in block 34 (Dependent Children), he listed one dependent child, , with a birthdate in 2009; c. Part III, Section X (SBP Election), block 35 (Reserve Component Only), he placed an "X" in "Option C: Previously elected or defaulted to immediate RC-SBP Coverage"; and d. Part IV (Certification), Section XI (Certification), block 41 (Member), he signed the form on 26 September 2022 and his signature was witnessed on the same date. 13. He provided a DD Form 2656-2 (SBP Termination Request), 14 July 2023, showing he elected to terminate SBP coverage with a concurrence letter 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 applicant's military records, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records, the Board determined there was insufficient evidence to mitigate the applicants’ contentions for correction of his records to show he timely declined Reserve Component Survivor Benefit Plan (RCSBP) coverage reimbursement of Survivor Benefit Plan (SBP) premiums already paid. The Board noted, the applicant was medically discharged in 2009, but in a 2022 decision, the ABCMR vacated that discharge and directed that Applicant be processed through DES; pursuant to the DES process, Applicant was medically retired for disability with an effective retirement date of 2009. 2. The Board agreed, the applicant properly signed his DA Form 2656 and read the document prior to being processed. The Board noted, it is open season and the applicant may decline SBP coverage during open enrollment. The Board found no injustice or error when the applicant’s enrolled on the SBP program. The Board denied relief. ? 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. 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, the RCSBP, enacted 30 September 1978, provided a way for those who qualified for Non-Regular (Reserve) retirement but were not yet age 60 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, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. 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 RCSBP. RCSBP coverage automatically converts to SBP coverage upon retirement. 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) AR20230004645 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1