IN THE CASE OF:	  

		BOARD DATE:  8 January 2013

		DOCKET NUMBER:  AR20120008477 


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 her election to not participate in the Survivor Benefit Plan (SBP) be honored.

2.  The applicant states that she and her husband are in agreement to not participate in SBP.  The only reason she is being required to do so is that the original election did not contain her spouse’s signature, rendering her election invalid.  The second submission was not properly sequentially signed and dated. 

3.  The applicant provides copies of two DD Forms 2656 (Data for Payment of Retired Pay).

CONSIDERATION OF EVIDENCE:

1.  The applicant, born 26 October 1949, was appointed as a first lieutenant in the U.S. Army Reserve (USAR), Army Nurse Corps effective 10 November 1981. She served continuously in the USAR until she retired on 1 March 2012.

2.  The applicant received her "Notification of Eligibility for Retired Pay at Age 60" (commonly referred to as the 20-year letter) on 20 March 2002.  The letter stated that a member who was married would be automatically enrolled under Option C, full spouse coverage, unless spouse concurrence was provided for another election.  


3.  The Defense Finance and Accounting Service (DFAS) provided a copy of page one of the December 1976 version of the DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 5 June 2002, wherein the applicant made the election not to participate in the SBP.  She marked "none" for coverage and Option A (Defer).  Page one of the form contains a stamped statement, "No Spouse consent given."  Page two of the form is not available.  

4.  In preparation for her receipt of retired pay, the applicant completed a DD Form 2656.  She again marked the block electing to not participate in the SBP.  Her spouse and the witness signed and dated form on 25 January 2012, her signature is dated 30 January 2012.

5.  At some undocumented point, the applicant was notified her election to not participate in SBP could not be honored.  It appears this was because the DD Form 1883 did not contain a spousal signature and/or the dates of signatures on the DD Form 2656 were not in compliance with regulations. 

6.  The applicant submitted a second DD Form 2656, again declining SBP coverage and her spouse concurred with this decision.  All signatures on this application are dated 24 April 2012.

7.  On 30 September 1978, Public Law 95-397 established the Reserve Component (RC) Survivor Benefit Plan (RCSBP) in order to allow RC members to purchase the same protection afforded active component (AC) members since 21 September 1972 with the standard SBP.  RCSBP allows a retirement-eligible Reserve Soldier to elect to receive reduced retired pay during his/her lifetime in order to provide a continuation of a portion of his/her retired pay to a survivor upon his/her death.  

8.  RCSBP elections must be made within 90 days after receiving the retirement packet.   Since 1 January 2001, by law, married members must provide written spousal concurrence in order to elect less-than-maximum RCSBP participation (i.e., other than Option C, full base amount, spouse or spouse/children).  Failure to do so will result in "automatic" spouse coverage, option C, full base amount, for which premiums will begin to be owed at age 60.  Prior to 1 January 2001, failure to make any or a proper RCSBP election "defaulted" to no coverage, by law.  This law change was enacted to bring the RC plan (RCSBP) elections into line with the AC plan (SBP) elections, which have required spousal concurrence since 1 March 1986.

9.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-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.  Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay.

DISCUSSION AND CONCLUSIONS:

1.  While the 1976 version of the DD Form 1883 the applicant completed does not include the specific information about the concurrence requirement, her 20-year letter did include the information related to the requirement to make an election and that any option except full coverage had to have spousal concurrence, otherwise the service member would be automatically enrolled under Option C.  

2.  It appears that no one notified the applicant and/or her spouse that, at the time she submitted the DD Form 1883, her spouse had to complete a spousal consent statement.  

3.  The technical error of the incorrect signature order on the DD Form 2656 is a moot issue since by not having a spousal consent to decline RCSBP at the time she submitted the DD Form 1883, she already was locked into Option C.

4.  Notwithstanding the apparent lack of notification of errors on her DD Form 1883, the applicant was properly notified of the requirement to provide spousal consent of any election other than Option C at the of the receipt of her 20-year letter and was locked into participation as of the date of the submission of that form without the proper consent statement.

5.  While the applicant is locked into participating in the SBP at the current time, she will have the option to disenroll from the SBP during the one-year period beginning on the second anniversary of the date on which she commenced receipt of retired pay  

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)                                         AR20120008477



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ABCMR Record of Proceedings (cont)                                         AR20120008477



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