BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110010623 


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 termination of her Survivor Benefit Plan (SBP) coverage.

2.  The applicant states she declined SBP coverage upon retirement; however, her husband signed the form after she had done so.

3.  The applicant provides:

* DD Form 2656 (Data for Payment of Retired Personnel)
* California All-Purpose Acknowledgement
* husband's notarized statement
* two Retiree Account Statements
* DD Form 2656-6 (SBP Election Change Certificate)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 10 February 1951.  She and her husband were married on 4 June 1977.

2.  She was appointed as a Reserve commissioned officer in the rank of second lieutenant and executed an oath of office on 9 October 1986.  She served 

in a variety of stateside assignments and she was promoted to lieutenant colonel (LTC) on 9 August 2006.

3.  On 9 November 2006, the U.S. Army Human Resources Command issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). This letter notified her that she had completed the required years of service and would be eligible for retired pay upon application at age 60.

4.  This letter also notified her that she was entitled to participate in the Reserve Component SBP (RCSBP) and that "by law, she had only 90 calendar days from the date she received this letter to submit a DD Form 2656-5 (RCSBP Election Certificate) or DD Form 1883 (SBP Election Certificate).  It also informed her that a qualified Reserve Component member, who is married, will automatically be enrolled in the RCSBP under Option C, Spouse and children coverage based on full retired pay, unless spouse concurrence is provide to allow for a different election.

5.  There is no indication she made an RCSBP election with 90 days of receiving her 20-year letter.

6.  On 4 January 2011, Headquarters, U.S. Army Reserve Command, Fort McPherson, GA, published Orders 11-004-00026 reassigning her to the Retired Reserve effective 28 February 2011.

7.  She was placed on the Retired List in the rank of LTC on 10 February 2011, her 60th birthday.  However, her retirement orders were not published until 28 March 2011.

8.  On 14 February 2011, she completed a DD Form 2656 wherein she indicated she was married.  However, in item 26 (Beneficiary Category) she placed an "X" in item 26g indicating she did not have eligible dependents under the plan, but she did not place an "X" in item 26g indicating she elected not to participate in the SBP.  Additionally:

* she authenticated this form by placing her signature and date (14 February 2011)
* her spouse and a witness also authenticated and notarized this form by placing their signatures, but they did so on 4 March 2011

9.  Her June 2011 Retiree and Account Statement reflects SBP spouse coverage and a corresponding SBP cost.

10.  On 10 May 2011, she submitted a DD Form 2656-6 wherein she stated her current coverage was that of spouse coverage and she desired to suspend this coverage.  She, her husband, and a witness authenticated this form by placing their signatures in the appropriate blocks.

11.  On 9 August 2011, her husband submitted a notarized statement wherein he states, "I, the undersigned, [his name], the spouse of [applicant], hereby state that I concur with [applicant's] request to revoke the SBP election and I understand that my concurrence is irrevocable and that I waive my rights to any post-death SBP benefits."

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 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 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.

14.  Public Law 106-398, dated 30 October 2000, requires that upon receipt of the 20-year letter, a qualified Reserve Component member who is married will automatically be enrolled in the RCSBP under option C (spouse and children coverage) based on the full amount unless the spouse's concurrence is provided to allow one of the following elections:

* option A (defer enrollment to age 60)
* option B (enroll and pay annuity when member would have been age 60 for spouse or spouse and children at less than maximum amount or enroll children only)
* option C (enroll and pay annuity immediately upon death, but enroll spouse or spouse and children at less than maximum amount or enroll children only)


DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Soldiers who complete 20 or more years of qualifying service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The law required the Soldier to make an election and return the enrollment form within 90 days of receipt.  The law also stipulates that a qualified Reserve Component member who is married will automatically be enrolled in the RCSBP under option C (spouse and children coverage) based on the full amount unless the spouse's concurrence is provided for a different option.

2.  There is no evidence in the applicant's records and she did not provide any evidence to show she made an election when she received her 20-year letter.  Therefore, she was automatically enrolled in option C (immediate coverage).  This means she did not have the option to make another election at age 60.

3.  The fact that she submitted a DD Form 2656 – albeit incomplete and signed after her 60th birthday – and the fact that her husband submitted a notarized statement concurring with her election are not relevant since she did not have the option to make an election at that time.

4.  Nevertheless, retirees have a 1-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.  The request may be submitted directly to the Defense Finance and Accounting Service.  The applicant's withdrawal window will open in February 2013.

5.  In view of the foregoing evidence, there is insufficient evidence to support granting her the requested relief at this time.

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 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)                                         AR20110010623



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ABCMR Record of Proceedings (cont)                                         AR20110010623



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