BOARD DATE: 13 March 2014
DOCKET NUMBER: AR20130010422
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 enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).
2. He states he was recently informed that his current spouse may be eligible for RCSBP beneficiary status. He explains he was previously married and divorced in 2007. At the time of receipt of his 20-year letter in December 2009, he was engaged to his current spouse. The letter informed him that he had to select one of the options within 90 days of receipt of the letter. However, he did not feel that any of the options covered his situation and he was not planning on retiring until he reached his mandatory removal date.
3. He further states that during the late summer and fall of 2011, he began to develop his U.S. Army Reserve (USAR) retirement package. During his research of the RCSBP, he discovered that spouse-only coverage is "limited to those situations where the spouse is less than 5 years older or younger than the applicant." Since he was 60 and his spouse was 39, they felt that it effectively removed her from being considered as his sole beneficiary of his RCSBP. Therefore, in 2011 they completed a DA Form 2656 (Data for Payment of Retired Personnel) declining participation in the SBP.
4. He provides:
* self-authored statement
* DD Form 2656, dated 31 December 2011
* letter to a Defense Finance and Accounting Service (DFAS) Retired and Annuity Pay Section financial management analyst (incorporated with his self-authored statement), dated 4 March 2013
* DD Form 2656-5 (RCSBP Election Certificate), dated 26 March 2013
* DFAS letter, dated 25 June 2013
* New York State Certified Transcript of Marriage
* New York State Divorce Decree with a Certificate of Dissolution of Marriage
* email
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 27 August 1952. He was appointed as a commissioned officer in the USAR on 9 November 1989.
2. His Certificate of Dissolution of Marriage and divorce decree show he was divorced on 24 October 2007.
3. On 10 December 2009, he received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter). The letter indicated that an SBP packet was enclosed and he had 90 days from the date of the letter to make a decision.
4. On 8 October 2010, the applicant remarried.
5. A DD Form 2656, dated 31 December 2011, provided by the applicant shows he elected not to participate in the SBP and his spouse concurred. In item 29 (Remarks) of this form he stated that his ex-spouse would be entitled to a portion of his pension based on information included in their separation agreement and the divorce.
6. On 1 September 2012, he was placed on the Retired List.
7. In a letter, dated 25 June 2013, DFAS stated the applicant declined coverage at retirement so they were unable to add his spouse at this time.
8. 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 dependents.
9. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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 until the date of the member's 60th birthday; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. At the time, an election must have been made within 90 days of receipt of the 20-year letter or the member would have to wait until reaching age 60 to make an SBP election.
10. Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP, but who later marries or acquires a dependent child, may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child.
DISCUSSION AND CONCLUSIONS:
There is nothing in the statute or regulation that prohibits a person from participating in the RCSBP based on the differences in age between the retiree and the potential annuitant. Further, he provided no evidence that he was provided such misinformation by government services. The evidence of record shows the applicant and his spouse declined participation in the SBP on 31 December 2011. This request was accepted and processed by DFAS and is a valid declination of coverage. There is neither an error nor an injustice. Therefore, the applicant is not authorized to enroll in the SBP. He is advised to read Army Echoes, the Army retiree bulletin, to find out when/if Congress declares an SBP open season.
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) AR20130006397
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ABCMR Record of Proceedings (cont) AR20130010422
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