IN THE CASE OF:
BOARD DATE: 16 December 2010
DOCKET NUMBER: AR20100012764
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, cancellation of the Reserve Component Survivor Benefit Plan (RCSBP) coverage for her current spouse and refund of premiums deducted from her retirement pay.
2. She states she never wanted the coverage and the wrong block must have been checked in the initial paperwork.
3. She provides her:
* Retiree Account Statement
* SBP Affidavit
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show she was born on 31 December 1949. She enlisted in the U.S. Army Reserve (USAR) on 9 September 1981.
2. On 10 October 2001, she was issued a Twenty Year Letter. The letter advised that upon receipt of that letter, a qualified Reserve Component member, who was married, would automatically be enrolled in the RCSBP under Option C, Spouse and Child(ren) coverage based on full retired pay, unless spouse concurrence was 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): (1) Enroll spouse or spouse and child(ren) at less than the maximum level or (2) Enroll child(ren) only, or c. Option C (Enroll and pay an annuity immediately upon her death), but: (1) Enroll spouse or spouse and child(ren) at less than the maximum level or (2) Enroll children only. The letter also advised her that she must notify the USAR Personnel Command, using DD Form 1883 (SBP Election Certificate), of her decision within 90 days of the date of the letter.
3. Her records contain a DD Form 1883, dated 20 December 2001, which shows she was married to her current spouse on 20 May 1984, she had no dependent children, and she annotated Option A (Defer). The DD Form 1883, page 2 is dated 11 February 2002 and annotated with her spouse's signature.
4. Her records also contain an SBP Questionnaire wherein she stated she was provided SBP counseling, her spouse understood her retired pay would stop if she died and she was not enrolled in the SBP, and she was not sure she had completed the DD Form 2656 (Data for Payment of Retired Personnel).
5. She was released from the USAR for completion of 20 or more years of Reserve duty and transferred to the Retired Reserve on 1 October 2004.
6. A DD Form 2656 provided by the Defense Finance and Accounting Service (DFAS), dated 3 March 2008, Section IX (SBP Election), shows she elected not to participate in the SBP. In Section X (Remarks) she stated she did not want SBP. The form was signed by the applicant and her spouse, before a witness, on 3 March 2008.
7. She reached age 60 on 31 December 2009 and applied for retired pay.
8. She provided her Retiree Account Statement, dated 14 January 2010, showing $14.35 was deducted from her retired pay for SBP costs.
9. She also provided an SBP Affidavit wherein she stated she was properly counseled about SBP and completed a DD Form 2656; however, the form was not on file at DFAS - Cleveland Center, or it was invalid. On 22 March 2010, her spouse signed the affidavit before a notary concurring with her election to decline maximum SBP coverage.
10. Public Law 106-398, dated 30 October 2000, required Reserve and Guard members, who had completed their service obligation, considered entitled for retired pay, but who are not yet age 60, to obtain their spouse's concurrence in RCSBP elections that do not provide maximum spouse coverage (immediate option). It applied to members receiving notification of service completion after 1 January 2001.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was married to her current spouse on 20 May 1984. On 11 February 2002, with her spouse's concurrence, she elected to defer RCSBP spousal coverage. She reached age 60 on 31 December 2009 and applied for retired pay in the months before her birthday. She completed a DD Form 2656 declining SBP and her husband concurred. This form bears markings indicating it was received at the Human Resources Command prior to the effective date of her retirement. It was apparently not forwarded to DFAS or was rejected because her husband's concurrence was not notarized. Her husband has since provided a notarized concurrence.
2. Based upon her desire and her current spouse's concurrence, her election to decline SBP spouse coverage should be accepted and a refund of all premiums paid.
BOARD VOTE:
____X____ ___X_____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was 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 declined SBP spouse coverage with her spouse's concurrence upon her application for retired pay effective 31 December 2009 and refund the applicant all premiums that were 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) AR20100012764
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ABCMR Record of Proceedings (cont) AR20100012764
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