IN THE CASE OF: BOARD DATE: 20 December 2023 DOCKET NUMBER: AR20230005379 APPLICANT REQUESTS: * termination of his Reserve Component Survivor Benefit Plan (RCSBP) coverage * reimbursement of Survivor Benefit Plan (SBP) premiums already paid * a personal appearance hearing before the Board via video or telephone 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, undated * DD Form 2656-5 (RCSBP Election Certificate), 18 August 2021 (pages 2 and 3 only) * DD Form 2656 (Data for Payment of Retired Personnel), 8 March 2022 (pages 3 and 4 only) * Defense Finance and Accounting Service (DFAS) Retired and Annuity Pay Letter, 10 January 2023, with allied document FACTS: 1. The applicant states SBP premiums were deducted from his retired pay and should never have been deducted. His retirement package included an original DD Form 2656, 18 August 2021. He then had to change his retirement date from 31 December 2021 to after his next drill (inactive duty training assembly) date of 7-8 February 2022. Subsequently, he updated his retirement paperwork and completed a new DD Form 2656 declining enrollment in the SBP. He was never informed that he had to complete a DD Form 2656-6 (SBP Election Change Certificate). He only completed the DD Form 2656 as instructed. He believes he now is due a refund of $3,006.71 for unwanted SBP coverage. 2. In his undated self-authored statement, he states: Terminating Coverage for a Natural Interest Person with an Insurable Interest after Retirement If you have elected NIP [Natural Interest Person] SBP coverage, you may terminate it at any time by requesting it in writing. There is no requirement for concurrence by the beneficiary. No refund of previous premiums paid will be made. The original DD Form 2656-5 AUG[UST] 2011 [edition] that I signed requesting SBP coverage was dated 20210818 [18 August 2021]. According to the regulation that I provided above [sic], it states that all I have to do is request termination in writing, which I did. It was dated on 20220308 [8 March 2022] on DD Form 2656 OCT[OBER] 2018 [edition], which was the current form at the time. Several problems arise when I look at all of this. First, the DD Form 2656-5 AUG[UST] 2011 was outdated and never should have been used in my retirement package since DD Form 2656 OCTOBER 2018 was more current. Second, both forms were included in my retirement package. Since they had conflicting information, the newer one should have been used since it rescinded the previous, outdated, form. My package went through at least five reviews and updates before it was accepted. The conflicting forms were never addressed. I was only notified that I had SBP [coverage] when I received the back pay due to me almost one year after I retired, and I was never given the opportunity to correct this error. I was specifically told by retirement services () that filling out the second form would rescind the first form. My original retirement date that I requested was 31 Dec[ember] 2021. That was why I was doing the paperwork in August. The National Guard refused my retirement and called me in to drill [train] in February 2022. They then stated that I could then retire. I then had to redo a bunch of paperwork for the new retirement date. I had to schedule a new appointment and I received that appointment in March 2022. At that time, I completed the DD Form 2656, OCTOBER 2018 [edition] rescinding the SBP; it was in writing and witnessed. I request a refund of all monies paid to SBP since I properly rescinded the program in writing before any monies were taken from me [my] retirement pay (you may terminate it at any time by requesting it in writing). I have sent in a new form to suspend SBP until this matter is resolved. 3. Following enlisted service in the Regular Air Force, commissioned service in the U.S. Air Force Reserve, and a break in service, he was appointed as a Reserve commissioned officer in the Arizona Army National Guard (AZARNG) in the Chaplain Corps in the rank/grade of captain/O-3 effective 11 July 2014. 4. He reached age 60 in December 2017. 5. He was promoted to the rank/grade of major/O-4 effective 26 May 2020. 6. The Joint Force Headquarters – Arizona, memorandum (Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years)), 13 August 2021, notified him that having completed the required years of service, he was eligible for retired pay upon application at age 60 unless he qualified for a reduced eligibility age in accordance with statutory guidance. 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. 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]. You must complete and return the enclosed DD Form 2656-5 to the address in the letterhead. 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. 7. His records contain a complete copy of his DD Form 2656-5, 18 August 2021, that shows in: a. Instructions: The decision you make regarding participation in the Reserve Component Survivor Benefit Plan (RCSBP) is very important. A decision to participate, that is to select either Option B or C, is permanent and cannot be changed unless authorized by law such as the opportunity to terminate your participation during the period that is between your 62nd birthday and the day before you reach age 63 at which time you may elect to discontinue participation [emphasis added]. A decision to decline RCSBP coverage means you will not have another opportunity to select SBP coverage until age 60. In the event you decline RCSBP coverage and die prior to your 60th birthday, no survivor benefits will be paid. Please review the program details carefully and consider the effects of your decision before making an election. You must submit this form within the 90-day period after being notified of eligibility for retired pay at age 60. If you do not submit this form as required, your election, if any, will be determined by law. b. Section II (Marital/Dependency Status), block 7 (Are You Married?), he placed an "X" in the "No" box; c. Section II, block 8 (Do You Have Any Dependent Children?), he placed and "X" in the "No" box; d. 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 date of my death, whether before or after age 60"; e. Section IV, block 13 (Type of Coverage), he placed an "X" in the box by the statement: "Natural Person with an Insurable Interest"; f. Section V (Level of Coverage), he elected "Full Retired Pay"; g. Section VI (Insurable Interest Coverage), block 15 (Insurable Interest Beneficiary) he listed, his sibling; and h. Section VIII (Member's Signature), block 17 (Signature of Member) and block 18 (Date Signed), he signed the form on 18 August 2021 and his signature was witnessed by on the same date in Phoenix, AZ (Arizona National Guard Joint Force Headquarters). 8. His National Guard Bureau Form 22 (National Guard Report of Separation and Record of Service) shows he was honorably separated from the AZARNG effective 7 February 2022 and transferred to the Retired Reserve by reason of attainment of maximum age. He completed 20 years, 7 months, and 11 days of total service for pay. 9. AZARNG Army Element Joint Force Headquarters Order 0001703351, 5 March 2022, transferred him to the Retired Reserve by reason of completion of 20 years of service effective 8 February 2022. 10. AZARNG Army Element Joint Force Headquarters Order 0001703351.01, 4 November 2022, amended AZARNG Army Element Joint Force Headquarters Order 0001703351, 5 March 2022, to show he was receiving Non-Regular retired pay effective 8 February 2022. 11. U.S. Army Human Resources Command Orders C11-298555, 30 November 2022, retired him and placed him on the Army of the United States Retired List in the rank of major effective 8 February 2022. 12. He provided: a. his DD Form 2656 (pages 3 and 4 only), 8 March 2022, showing in: (1) Part III, Section X (SBP Election), block 33 (Reserve Component Only. (This section refers to the decision you previously made on the DD Form 5656-5 when you were notified of eligibility to retire, in most cases you do not have the right to make a new election on this form.) Reserve/National Guard members who achieve 20 qualifying years of service make the election to participate in the Reserve Component (RC) SBP (DD Form 2656-5) within 90 days of being notified of eligibility for a non-regular retirement, not when applying for retired pay, unless that member previously elected to defer coverage. You must indicate your previous election in Block 33a through 33c before proceeding to Block 34. If you previously elected Option B or Option C, DO NOT enter an election in Block 34. (Check only one in Block 33a. through 33c.)), he placed an "X" by the statement: "Option A – Previously declined to make an election until eligible to receive retired pay"; (2) Part III, Section X, block 34 (SBP Beneficiary Category(ies)), he placed an "X" in the box by the statement: "I elect not to participate in SBP. (I have eligible dependents under the plan. If 'Yes,' spouse concurrence is required in in Part V), he placed an "X" in the "No" block"; and (3) Part IV (Certification), Section XI (Certification), block 39 (Member), he signed the form on 8 March 2022., a Retirement Services Office representative in the Arizona National Guard Joint Force Headquarters, Phoenix, AZ, signed the form on the same date. b. the DFAS letter, 10 January 2023, with an allied document, informing him that his retired pay account had been established and a summary of his account was enclosed. The summary shows he has SBP coverage for "Insurable Interest Person" and the premiums he pays for that coverage. 13. The email correspondence with a DFAS pay technician (Army Review Boards Agency Assistance), 27 November 2023, notes the applicant's current SBP election is "No Beneficiary." His previous SBP coverage was "Natural Person with an Insurable Interest." The DFAS pay technician noted a review needed to be conducted as he had "Natural Person with an Insurable Interest" RCSBP coverage and should be paying a Reservist Portion add-on cost unless the natural person has passed away. A DFAS review noted the service member was over 60 years of age at retirement; therefore, the RCSBP would not have applied to his account. As such, his account currently reflects "no beneficiary" and no credit is due to the member. The DFAS database contains the following documents pertaining to the applicant: a. the applicant's original DD Form 2656-5, 18 August 2021, showing he elected "Natural Person with an Insurable Interest" coverage with "Option C (Immediate Annuity)"; b. the applicant's DD Form 2656, 7 July 2022, showing in: (1) Part I (Retired Pay Information), he noted his retirement date as 8 February 2022; (2) Part III, Section X (SBP Election), block 35 (Reserve Component Only. (This section refers to the decision you previously made on the DD Form 5656-5 or the old form the DD Form 1883 (SBP Election Certificate) when you were notified of eligibility to retire, in most cases you do not have the right to make a new election on this form.) "Reserve/National Guard members who achieve 20 qualifying years of service make the election to participate in the Reserve Component (RC) SBP (DD Form 2656-5) within 90 days of being notified of eligibility for a non-regular retirement, not when applying for retired pay, unless that member previously elected to defer coverage. You must indicate your previous election in Block 35a through 35c before proceeding to Block 36. If you previously elected Option B or Option C, DO NOT enter an election in Block 36. (Check only one in Block 35a. through 35c.))," he placed an "X" by the statement: "Option A – Previously declined to make an election until eligible to receive retired pay”. (3) Part III, Section X, block 36 (SBP Beneficiary Category(ies)), he placed an "X" in the box by the statement: "I elect not to participate in SBP" and he placed an "X" in the "No" box by the statement: "I have eligible dependents under the plan"; and (4) Part IV (Certification), Section XI (Certification), block 41 (Member), he signed the form on 17 July 2022. A co-worker in Queen Creek, AZ, witnessed and signed the form on the same date; and? c. the applicant's DD Form 2656-6 (SBP Election Change Certificate), 19 January 2023, showing in: (1) Section II (Current Coverage), block 7 (My Current Coverage is), he checked "Insurable Interest"; (2) Section IV (Requested Change to Coverage), block 9 (Place an X in the Appropriate Box to Indicate Your Election), he checked "Suspend Coverage"; and (3) Section VII (Member Signature), he signed the form on 19 January 2023 and his signature was witnessed by a notary public on the same date in Queen Creek, AZ. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that partial relief was 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, available military records and the DFAS correspondence, the Board noted the DFAS findings showing the applicant's current SBP election is "No Beneficiary." His previous SBP coverage was "Natural Person with an Insurable Interest." The Board determined the applicant did not meet the criteria for ‘open season” SBP termination based on the 2023 NDAA, which states: * 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 Reserve Component SBP 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). * The SBP open season also allows eligible members and former members who are currently enrolled in either the SBP or Reserve Component SBP 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. The Board found the applicant did not meet the criteria requirements for open season termination. 2. Evidence shows the applicant elected option C for RCSBP insurable interest person (NIP) coverage for his sibling o/a 18 August 2021 following receipt of his Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years). The applicant subsequently retired effective 8 February 2022 and submitted a DD Form 2656 essentially attempting to withdraw the previously elected NIP coverage o/a 08 March 2022 and then again on 07 July 2022. The Board agreed based on Public Law 103-337 for terminating coverage for a natural person with an insurable interest after retirement, which states that if a member elected NIP SBP coverage, the member may terminate it at any time by requesting it in writing. There is no requirement for concurrence by the beneficiary. Currently, the applicant has withdrawn his NIP SBP coverage as noted by DFAS. 3. Furthermore. the Board noted the applicant paid RCSBP premiums and had he passed prior to 8 March 2022, his designated NIP would have received his survivor benefits. Based on the evidence, the Board determined that partial relief is warranted in the form of premiums paid after 8 March 2022 based on the applicant’s revocation should be refunded. Therefore, the Board granted partial relief by correcting his records to show he made a timely request for termination of his NIP coverage effective 8 March 2022. Note: Because termination of NIP coverage may be made at any time, there is no requirement for applying during an open season. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant submitted withdrawal of the previously elected insurable interest o/a 08 March 2022 upon receipt of the 20-year letter that was received and processed by the appropriate office in a timely manner. Recommend reimbursement of premiums paid. 2. 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 termination of his Reserve Component Survivor Benefit Plan (RCSBP) coverage prior to 8 March 2022. 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) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. 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. 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 and provided a way for those who had 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 the member dies 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 the member's 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. Members 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. 4. 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 to disenroll. 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. 5. Department of Defense Instruction 1332.42 (Survivor Annuity Program Administration) states a member may elect to discontinue participation by submitting a DD Form 2656-2 (SBP Termination Request) 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. 6. According to the DFAS SBP website, an NIP is a beneficiary other than a spouse or child. For example, it could be a parent or grandchild, or someone to whom the service member is not related. NIP coverage can be very expensive. It is at least 10 percent and can be up to 40 percent of a member's retired monthly pay, depending on the member's age and the age of the member's beneficiary at the time of election. If a member has elected NIP SBP coverage, the member may terminate coverage at any time by requesting termination in writing. There is no requirement for concurrence by the beneficiary. No refund will be made of previously paid premiums. 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) AR20230005379 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1