BOARD DATE:	  15 July 2014

		DOCKET NUMBER:  AR20130017685 


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 her record to show she elected not to participate in the Reserve Component Survivor Benefit Plan (RCSBP).

2.  She states:

	a.  The law was changed to require participation in the RCSBP if an election was not made.  This is in direct conflict with the instructions provided in her notification of eligibility for retired pay (20-year letter).  She received her 20-year letter before the U.S. Army Reserve (USAR) Personnel Command (now known as the U.S. Army Human Resources Command (HRC)) updated the instructions contained in the document.

	b.  When she received her first retirement check on 1 July 2013, she was surprised to see an SBP deduction in the amount of $311.87.  She called the Defense Finance and Accounting Service (DFAS) and told them that when she submitted her DA Form 2656 (Data for Payment of Retired Personnel) in 2012 she had elected not to participate in the SBP.  DFAS informed her that the error would be corrected, but it was not.

	c.  Subsequently, DFAS informed her that anyone who received a 20-year letter after 21 January 2001 was required to make an RCSBP election within 90 days of receipt of the 20-year letter or automatic coverage for all eligible beneficiaries would go into effect.  She responded, noting the discrepancy between DFAS's response and the instructions in her 20-year letter.  DFAS informed her that it does not have the authority to disregard RCSBP requirements based on a 20-year letter.

	d.  HRC has informed her that there was a delay between the time the law was changed and when HRC changed the wording in 20-year letters to reflect the change in law.  She was not notified by HRC or DFAS of the change and should not be penalized.

3.  She provides:

* Retiree Account Statement
* e-mail
* 20-year letter
* the back page of a DD Form 2656

CONSIDERATION OF EVIDENCE:

1.  The applicant served as a commissioned officer in the USAR from 26 June 1974 until she was transferred to the Retired Reserve effective 2 May 2003.

2.  On 25 July 2001, the USAR Personnel Command issued a 20-year letter to the applicant informing her she had completed the required years of qualifying service to be eligible for retired pay upon application at age 60.  The letter stated:

* she was entitled to participate in the RCSBP
* she had 90 calendar days from the date she received the letter to submit a DD Form 1883 (SBP Election Certificate)
* if she did not submit her election within 90 calendar days, she would not be entitled to SBP coverage until she applied for retired pay at age 60

3.  Effective 2 June 2013, she was placed on the Army of the United States Retired list upon reaching 60 years of age.

4.  She provides the back page of a DD Form 2656, dated 29 May 2012.  Section IX (SBP Election) shows she elected not to participate in the SBP and indicated she did not have eligible dependents under the plan.  Section XII (SBP Spouse Concurrence) shows her spouse signed the form indicating he concurred with her SBP election.  Her spouse's signature was notarized.

5.  She also provides:

	a.  a Retiree Account Statement, dated 23 July 2013, showing SBP costs in the amount of $311.87 were deducted from her retired pay for spouse-only SBP coverage and

	b.  e-mail showing that, on 21 August 2013, a DFAS staff member informed her that DFAS did not have the authority to disregard RCSBP requirements established in law based on her 20-year letter.  

6.  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.  

7.  Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60.  The law is applicable to cases where a 20-year letter was 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.  The evidence of record shows the applicant was not properly notified of her RCSBP options in the 20-year letter she was issued on 25 July 2001.  As a result, she did not make an RCSBP election, and her RCSBP coverage defaulted to the election required by law.  Because members of the Reserve components do not pay RCSBP premiums until they begin to receive retired pay, she would not have been aware of the default election until she began to receive retired pay.  

2.  Based on the 20-year letter she was issued, she made the reasonable assumption that she had no RCSBP election.  When she applied for retired pay, she confirmed her decision not to participate in the program and her spouse concurred.

3.  In view of the foregoing, it would be appropriate to correct the applicant's record to show she elected not to participate in the RCSBP within 90 days of receiving her 20-year letter and that her spouse concurred with her election.  As 

a result of this correction, any RCSBP/SBP costs that have been deducted from her retired pay should be refunded to her.

BOARD VOTE:

____X____  ____X____  __X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

* showing that, on 25 August 2001, she elected not to participate in the RCSBP and her spouse concurred with this election
* refunding to her any RCSBP/SBP costs that have been deducted from her retired pay



      __________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)                                         AR20130017685





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ABCMR Record of Proceedings (cont)                                         AR20130017685



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