IN THE CASE OF:	  

		BOARD DATE: 	        1 July 2009

		DOCKET NUMBER:  AR20090002540 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her records be corrected to show she declined participation in the Reserve Component Survivor Benefit Plan (RCSBP) and that she receive reimbursement for any and all deductions from her retirement pay.  

2.  The applicant states that she was erroneously enrolled in the Survivor Benefit Plan (SBP).  On 11 March 2008, she and her husband declined to participate in the SBP.  They completed and signed the appropriate documentation (DD Form 2656 - Data for Payment of Retired Personnel) with the Retirement Services Officer at Fort Belvoir, VA.  Currently, the Defense Finance and Accounting Service (DFAS) is deducting $260.00 per month from her retirement pay for something she clearly declined.  DFAS informed her that they could not correct this error and that her only recourse was to apply to this Board.  She alleges that it is a severe injustice that she be penalized for an error made by someone else when she has the documentation clearly indicating that neither she nor her husband desired to participate in this non-mandatory plan.  

3.  The applicant provides a supplemental letter, her retirement orders, and her DD Form 2656 in support of her application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 24 December 1952.  She was appointed as a Reserve commissioned officer on 12 October 1976 in the rank of second lieutenant.  She married her first husband on 12 January 1979 and was divorced on an unknown date.  She was promoted to the rank of lieutenant colonel on 1 November 1995.

2.  The applicant married her current husband on 20 September 1997.  

3.  The applicant's notification of eligibility to receive pay at age 60 (20-Year Letter) is dated 28 July 2004.  The 20-Year Letter advised the applicant of her entitlement to participate in RCSBP and stated in part, "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."  

4.  The 20-Year Letter, dated 28 July 2004, also stated that "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:…"  There is no record of her making an RCSBP election.  

5.  Upon reaching her maximum years of service, the applicant was released from the U.S. Army Reserve Control Group (Reinforcement) and assigned to the Retired Reserve effective 1 November 2004.

6.  She was recalled to active duty on 1 December 2004 and served continuously on active duty for the next four years during which time she earned an active duty retirement.  

7.  On 11 March 2008, the applicant completed a DD Form 2656 and elected not to participate in the SBP.  Her spouse signed the DD Form 2656 under Section XI (SBP Spouse Concurrence) to indicate he concurred with the applicant's decision to decline participation in the SBP.  Section XII specifically states in part, "Also, I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within one year after the second anniversary of commencement of retired pay.  However, if I exercise my option to terminate the SBP, future participation is barred."

8.  The applicant signed the DD Form 2656 on 11 March 2008 and the witness, G____ S L_____ signed in item 33a (Witness Name) on 11 March 2008.

9.  The applicant retired with over twenty years of active duty service on 1 December 2008.

10.  The applicant provided a self-authored statement in support of her claim.  She stated that she received her retirement orders from the Fort Belvoir, VA Retirement Services Officer in early 2008.  She inquired about the timetable she should follow to accomplish all the required tasks associated with retirement.  She was instructed that she needed to attend a retirement briefing and set up a meeting with Ms. L____.  On 11 March 2008, she and her husband met with 
Ms. L___ and completed a DD Form 2656 indicating that she did not want to participate in the SBP.  In early December 2008, she received a statement regarding her retirement pay scheduled to begin in January 2009.  When she noted that the maximum allowable deduction was being made for SBP, she called DFAS to have them correct the error.  She was informed that the Fort Belvoir official, Ms. L___, had not signed the form.  At that point, she was informed that DFAS could not correct the file and she had to apply for a formal correction to her record.  Since that date, she received a welcome packet from DFAS that indicated that they had not received a DD Form 2656 and had thus enrolled her at the maximum allowable percentage.  She contends that she followed all instructions throughout the retirement process.  She clearly did not want to be enrolled in the SBP plan and this was an error made by DFAS that cannot be corrected without a change in her record by the Army Review Boards Agency.  

11.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  The member may elect not to participate (with their spouse’s concurrence, if required), but the election must be made before the first day for which the member is eligible to receive retired pay.  

12.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for 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; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

13.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where 20-year Letters have been issued after 1 January 2001.  In other words, failure to elect an option now results in the default election of option C.


14.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the 
second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she was erroneously enrolled in the SBP.  However, there is no evidence of record which indicates that an error or injustice has occurred in this case.  

2.  The evidence of record shows the applicant received her 20-Year Letter on 28 July 2004.  It appears that the applicant failed to make an RCSBP election at that time.  The notification informed her that she must submit her decision within 90 days of the date of the 20-Year Letter.  A booklet explaining the RCSBP was enclosed.  The applicant was a senior commissioned officer.  It is presumed she read the RCSBP booklet and understood the consequences of not making an immediate decision.  Because she made no election on her RCSBP coverage defaulted to immediate full spouse coverage by operation of law.  

3.  The applicant was assigned to the Retired Reserve in November 2004 and was recalled to active duty on 1 December 2004.  

4.  The applicant completed a DD Form 2656 on 11 March 2008 declining to participate in the SBP.  Her spouse signed the form indicating he concurred with the applicant's decision.  The DD Form 2656 shows that the witness, G____ S L_____, also signed the form on 11 March 2008.  However, the applicant was not eligible to decline SBP because of her RCSBP spouse coverage by default which automatically rolled into SBP coverage upon her active duty retirement.  

5.  There is insufficient evidence in which to grant the applicant's request; however she will have a one-year period, beginning on 1 December 2010, in which to terminate her SBP enrollment.  She is encouraged to contact the nearest Retirement Services Officer for more information prior to making her decision.


BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   x_______   ___
               CHAIRPERSON
      
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.



ABCMR Record of Proceedings (cont)                                         AR20090002540





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ABCMR Record of Proceedings (cont)                                         AR20090002540



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