BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110021300 


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 his Survivor Benefit Plan (SBP) coverage and correction of his record to show he declined participation in the Reserve Component SBP (RCSBP).

2.  The applicant states he submitted a DD Form 2656 (Data for Payment of Retired Personnel), signed by him and his spouse, to the Defense Finance and Accounting Service (DFAS) declining participation in the SBP prior to the beginning of his receipt of his retirement annuity.  He would have requested corrective action sooner, but he was under the impression that he was required to participate in the SBP for the first 2 years of his retirement.  DFAS indicates he requested to participate in the SBP in 2004, but he cannot find any record of doing so or that he was counseled on the SBP prior to separation.  He contends that had he been counseled, he would have never elected to participate in the SBP.  He concludes that he is not in poor health, so SBP is not a consideration and they need the extra $70 a month that the premiums cost.

3.  The applicant provides:

* DD Form 108 (Application for Retired Pay Benefits), dated 4 November 2006
* DD Form 2656, dated 6 November 2006
* Standard Form 1199A (Direct Deposit Sign-Up Form), dated 6 November 2006
* AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 21 September 2006
* DFAS-CL 7220/148 (Retiree Account Statement), effective 3 October 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 20 January 1947.  He and his spouse were married on 29 January 1970.

2.  Following periods of enlisted service in the U.S. Air Force, U.S. Air Force Reserve, and U.S. Army Reserve (USAR), the applicant was appointed as a USAR warrant officer in the rank of warrant officer one and executed an oath of office on 2 December 1994.  He served in a variety of assignments and he was promoted to chief warrant officer three (CW3) on 3 December 2002.

3.  On 15 October 2003, 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 him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

4.  This letter also notified him that he was entitled to participate in the RCSBP and that "by law, he had only 90 calendar days from the date he received this letter to submit a DD Form 2656-5 (RCSBP Election Certificate) or DD Form 1883 (SBP Election Certificate).  It also informed him 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 provided to allow for a different election.

5.  The applicant's record contains a DD Form 2656-5, dated 30 January 2004, wherein he indicated he was married, but had no dependent children.  In item 12 (Options) of Section IV (Coverage) he placed an "X" in the appropriate blocks indicating he elected Option C (Immediate Annuity) in order to provide an immediate annuity beginning on the day after his death, whether before or after age 60.  This coverage was for spouse only and was to be based upon his full retired pay.  He also elected supplemental coverage for his spouse at a ten percent annuity.  Additionally, he, his spouse, and a witness authenticated and notarized this form with their signatures on 30 January 2004.

6.  Information obtained from DFAS revealed that the applicant was automatically enrolled in the RCSBP because his election was not received within 90 days of the date of his 20-year letter.


7.  On 6 November 2006, he completed a DD Form 2656 wherein he indicated he was married and had two children (29 and 31 years of age).  In Section IX (SBP Election), item 26 (Beneficiary Category), he placed an "X" in item 26g indicating he elected not to participate in the SBP.  Additionally, he, his spouse, and a witness authenticated and notarized this form with their signatures on 6 November 2006.

8.  On 18 January 2007, Headquarters, U.S. Army Human Resources Command, St. Louis, MO, published Orders P01-780478 reassigning him to the Retired Reserve, effective 20 January 2007.

9.  He was placed on the Retired List in the rank of CW3 on 20 January 2007, his 60th birthday.

10.  His October 2011 Retiree and Account Statement reflects SBP spouse only coverage and corresponding SBP and RCSBP costs.  His record is void of any evidence showing he attempted to withdraw from participation in the SBP within a 1-year period beginning on the second anniversary of the date on which his retired pay started.

11.  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.  Once a member elects either Options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60.

12.  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.

13.  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 or elect not to enroll in the RCSBP.  The law required the Soldier to make an election and return the enrollment form within 90 days of receipt.

2.  Evidence clearly shows the applicant made an election for spouse coverage under option C on a DD Form 2656-5.  His spouse concurred with his election and they each authenticated the form before a witness on 30 January 2004.  Although the election was not received by DFAS within 90 days of the date he received his 20-year letter, he was automatically enrolled in the SBP for spouse coverage anyway under the provisions of Public Law 106-398.  This means he did not have the option to make another election at age 60.

3.  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 applicant's withdrawal window opened on 20 January 2009 and closed on 19 January 2010.  There is no evidence that he attempted to disenroll at that time.

4.  In view of the foregoing evidence, there is insufficient evidence to support granting him 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 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)                                         AR20110021300





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ABCMR Record of Proceedings (cont)                                         AR20110021300



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