IN THE CASE OF:
BOARD DATE: 13 December 2011
DOCKET NUMBER: AR20110010469
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, correction of his records to show he elected not to participate in the Reserve Component Survivor Benefit Plan (RCSBP).
2. He states he was issued his Notice of Eligibility for Retired Pay at Age 60
(20-year letter) on 1 June 2008; however, he was mobilized at Fort Bragg, NC. During the period of his mobilization, he had two colon resection surgeries and had to apply for an extension of his mandatory removal date (MRD) as a Retiree Recall.
3. Due to all the pressure, he forgot to decline the RCSBP and it took effect by default. His Army retired pay is the only income he and his wife receive. A total of $116.55 is deducted from his monthly retired pay of $1793.00, which has created a financial hardship for him and his family.
4. He provides copies of:
* his 20-year letter
* various orders
* medical documentation
* his MRD extension request
* a letter from the Commander, 79th U.S. Army Reserve (USAR) Sustainment Support Command
* his retiree account statement (RAS)
* a life insurance enrollment letter
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 5 July 1950. He was appointed as a first lieutenant in the Army National Guard in 1988.
2. He provided copies of four active duty orders for the period beginning 22 June 2007 and ending 31 July 2010. These orders show he was mobilized and/or ordered to active duty for operational support at Fort Bragg, NC. He was also issued his 20-year letter on 18 May 2008.
3. The medical documentation the applicant provides shows he underwent two colon resection surgeries between 26 December 2008 and 16 April 2009.
4. On 11 May 2010, the applicant completed a DD Form 2656-5 (RCSBP Election Certificate). This form shows he elected "Option A I decline to make an election until age 60." His spouse concurred on 17 May 2010 and her signature was witnessed on the same day.
5. He provides a letter from Major General W____ D. F____, Jr., who states he strongly recommends approval of the applicant's request. The applicant, an Army chaplain, had continued to be a significant asset to the 82nd Airborne Division by providing counseling and guidance to deploying and redeploying Soldiers and their family members.
6. His record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was honorably released from active duty (REFRAD) on 30 July 2010. On 5 July 2010 prior to his REFRAD, he turned age 60.
7. The applicant's RAS, dated 18 January 2011 shows an SBP premium of $116.55 is deducted from his monthly retired pay.
8. He also provides a letter showing he accepted a standard-rate enrollment for personal life insurance on 29 April 2011.
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, or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.
10. 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.
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 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.
12. Department of Defense Financial Management Regulation, volume 7B, chapter 54, provides guidance for RCSBP elections. This chapter states that a married member is enrolled with spouse coverage on full retired pay after 90 days of receipt of the 20-year letter unless that spouse has concurred in writing to another election requested by the member. When the spouse's concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. This chapter also states the Secretary of the Military Department concerned (or designee) may correct any election or any change or revocation of an election when the Secretary considers it necessary to correct an administrative error.
DISCUSSION AND CONCLUSIONS:
1. He contends that due to extenuating circumstances surrounding his medical condition, he did not submit his application to decline SBP coverage.
2. The evidence confirms the applicant was issued his 20-year letter in May 2008; nearly six months before his first surgery. He did not submit his request not to participate in the RCSBP until May 2010; which was 2 years after the letter was issued.
3. As such, Public Law 106-398 states that failure to make a timely election, would automatically default to option C, which is full SBP coverage.
4. Public Law 105-85 established the option to terminate SBP participation within a one-year window beginning on the second anniversary of the date on which their retired pay started. He can request to terminate SBP coverage beginning January 2013 through December 2013.
5. In view of the foregoing, he is not entitled to the requested relief.
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) AR20110010469
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ABCMR Record of Proceedings (cont) AR20110010469
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