BOARD DATE:  27 June 2013

		DOCKET NUMBER:  AR20130009884


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 correction of her records to show she elected enrollment in the Reserve Component Survivor Benefit Plan (RCSBP) under Option A (defer to age 60) versus Option C (automatic immediate spouse and children coverage).

2.  The applicant states:

* nothing in the military is implemented, initiated, or activated without a signature of acknowledgment – she can't believe, or understand, how something that produces such a substantial impact on a Soldier's retired pay could be any different
* her Notification of Eligibility for Retired Pay at Age 60 (20-year letter) is dated 23 October 2008 – she was, and still is, a drilling reservist
* she received the RCSBP paperwork with her 20-year letter, but she didn't understand why she needed to make a decision regarding RCSBP coverage while she was still serving
* she never received any counseling or a briefing that explained the process
* this type of life-impacting decision is very important and was handled, in her opinion, very poorly
* as a result of her recent attendance at a 99th Regional Support Command (RSC) retirement seminar, she now understands the impact of the RCSBP
* 
she still can't believe the military is allowed to make option selections for Soldiers without their signature, yet a Soldier must have his/her spouse's signature in order to disallow spouse coverage
* she would prefer Option A instead of Option C

3.  The applicant provides:

* a letter from the Army Review Boards Agency, Arlington, VA, dated
8 March 2013
* her 20-year letter, issued by U.S. Army Human Resources Command (HRC), St. Louis, MO, dated 23 October 2008
* a notarized letter signed by her spouse, dated 13 May 2013
* a DD Form 2656-6 (Survivor Benefit Plan (SBP) Election Change Certificate)
* a sample Defense Finance and Accounting Service (DFAS) – Cleveland (CL) Form 7220 (Retiree Account Statement)
* a copy of a informational brochure regarding a pre-retirement benefits seminar, hosted by the 99th RSC at Fort Belvoir, VA, on 26 January 2013 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show she was born on 29 November 1956.  She and her spouse, Chris, were married on 13 August 1988.

3.  On 7 June 1995, after prior enlisted service in the U.S. Army Reserve (USAR), she was appointed as a Reserve warrant officer of the Army in the rank/grade of warrant officer one (WO1)/W-1.  She served in the USAR in a variety of assignments and attained the rank/grade of chief warrant officer four (CW4)/W-4.

4.  On 23 October 2008, HRC issued her a 20-year letter wherein she was informed:
	a.  She had completed the required years of service and she would be eligible for retired pay upon application at age 60.

	b.  Public Law 106-398, dated 30 Oct 2000, requires that upon receipt of a 20-year letter, a qualified Reserve Component Soldier who is married will automatically be enrolled in the RCSBP under Option C (Spouse and Child(ren) coverage based on Full Retired Pay) unless their spouse concurs, in writing, with one of the other available elections:

		(1)  Option A, in which the Soldier defers enrollment to age 60 when he/she applies for retired pay;

		(2)  Option B, in which the Soldier enrolls in the RCSBP; however, in the event of his/her death, an annuity would not be paid until the date he/she would have turned age 60.  The Soldier had the option to enroll their spouse or spouse and child(ren) at less than the maximum level, or to enroll for "children only" coverage; or

		(3)  Option C, in which the Soldier enrolls in the RCSBP, and in the event of his/her death, an annuity would be paid immediately to the indicated surviving family members.  The Soldier had the option to enroll their spouse or spouse and child(ren) at less than the maximum level, or to enroll for "children only" coverage.

	c.  Soldiers have 90 days from receipt of the 20-year letter to make their election.  If they fail to return the form by the end of the 90-day period, by law they are automatically enrolled in Option C.

5.  There is no indication the applicant completed a DD Form 2656-5 (RCSBP Election Form) or a DD Form 1883 (SBP Election Certificate) within 90 days of receiving her 20-year letter.

6.  On 13 May 2013, her spouse, Chris, signed a statement wherein he acknowledges his wife's decision to revoke her RCSBP election.  The form was witnessed, signed, and notarized.  Additionally, on 14 May 2013, she completed a DD Form 2656-5, wherein she elected to suspend her RCSBP coverage.

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving family members.

8.  Public Law 95-397, enacted 30 September 1978, established the RCSBP.  The RCSBP provided a way for those who had qualified for Reserve retirement, but who 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 the Soldier dies before age 60, but delay payment of it until the date the Soldier would have reached 60 years of age; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.

9.  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.

10.  Public Law 106-398, enacted 30 October 2000, requires that upon receipt of the 20-year letter, a qualified Reserve Component member who is married, be automatically enrolled in the RCSBP under option C (spouse and children coverage), based on the full amount of retired pay, 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 an annuity immediately upon death, but enroll spouse or spouse and children at less than maximum amount or enroll children only)

11.  Public Law 106-398 further provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Reserve Component Soldiers who complete 20 or more years of qualifying service are issued a 20-year letter that informs them of their retirement eligibility and offers them the opportunity to enroll in the RCSBP. The law requires a 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.  Her 20-year letter informed her of the law’s requirements.

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 does not have the option to make another election at age 60.

3.  Nevertheless, retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay starts to withdraw from the 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 DFAS.  

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)                                         AR20120013335



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ABCMR Record of Proceedings (cont)                                         AR20130009884



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