IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20090018016 


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 that his records be corrected to show he declined participation in the Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states that he was enrolled in the SBP by someone else against his wishes because of a clerical error on his DD Form 2656 (Data for Payment of Retired Personnel).

3.  The applicant provides the following documents in support of his application:

* DD Form 2656
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* retirement orders
* spousal consent statement

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 21 January 1949.

2.  The applicant's record does not include a copy of his marriage certificate or any other document to show the date of his marriage.

3.  After having prior active duty and Reserve Component service, the applicant enlisted in the Oregon Army National Guard on 18 January 1980.  He was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 12 February 1998.  There is no evidence to show he made an RCSBP election at that time.

4.  The applicant continuously served in the Oregon Army National Guard until he was honorably discharged on 25 March 1998 and transferred to the Retired Reserve.  The National Guard Bureau Form 22 (Report of Separation and Record Service) he was issued on the date of his discharge shows he completed a total of 24 years, 1 month, and 22 days of creditable military service.

5.  In conjunction with his application for retired pay, the applicant completed and signed a DD Form 2656 on 28 April 2008.  He placed an "X" in the second block of item 26g indicating that he did have eligible dependents under the plan.  He did not place an "X" beside the first block of item 26g which states, "I ELECT NOT TO PARTICIPATE IN SBP."  His spouse signed the DD Form 2656 on 25 February 2008 under section XI (SBP Spouse Concurrence) to indicate she concurred with the SBP decision made by her spouse.

6.  On 2 March 2010, a Defense Finance and Accounting Service official confirmed that the applicant was transferred to the retired rolls on 21 January 2009, his 60th birthday.  He also stated the applicant's SBP election was invalid and, as a result, defaulted to automatic coverage.

7.  By a 25 May 2010 letter, the Board analyst advised the applicant to provide an up-to-date concurrence with his cancellation request from his spouse.  His spouse provided a notarized statement on 18 June 2010, indicating she concurred with the applicant's election not to participate in the SBP.

8.  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.

9.  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; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Under the law in effect at the time, a member was required to make the RCSBP election within 90 days of receiving the 20-year letter or else wait until he or she applied for retired pay at age 60 and elect to participate in the standard SBP.

10.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.

11.  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 default election when an election form was not submitted or is not on file is option C.  This law is applicable to cases where the 20-year letter was issued after 1 January 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he elected not participate in the SBP.

2.  It appears the applicant did not make an RCSBP election upon receipt of his 20-year letter.  Under the law then in effect, his failure to make an election, which did not require spousal concurrence, deferred his ultimate SBP election until he reached age 60 and applied for retired pay at that time.

3.  The applicant completed and signed a DD Form 2656 on 28 April 2008.  However, even though his spouse concurred, he did not place an "X" in the first block of DD Form 2656 indicating he declined participation in the SBP.  As a result, he was automatically enrolled in the SBP.

4.  The applicant's spouse provided an up-to-date concurrence with his cancellation request of his SBP election.

5.  It appears that it was the applicant's and his spouse's intent to decline participation in the SBP.  Therefore, as a matter of equity, it would be appropriate to amend the applicant's DD Form 2656 to show he declined to participate in the SBP in a timely manner and to refund him any paid premiums.

BOARD VOTE:

___X_____  ___X___  __X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the DD Form 2656 of the individual concerned be amended to show he and his spouse signed the form in a timely manner declining to participate in the SBP and it was received and accepted for processing by the appropriate office, thus resulting in his never being enrolled in the SBP and being due a refund of all SBP premiums paid.



      __________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)                                         AR20090018016



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ABCMR Record of Proceedings (cont)                                         AR20090018016



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