IN THE CASE OF:	  

		BOARD DATE:	  27 June 2014

		DOCKET NUMBER:  AR20130017787 


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 to her records to show she declined participation in the Survivor Benefit Plan (SBP).

2.  She states:

	a.  she didn't receive face-to-face counseling concerning SBP because she was an Individual Mobilization Augmentee (IMA) at the time she received her Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

	b.  she filed her 20-Year Letter when it came, which was her error.

	c.  she was actively working as a U.S. Army Reserve (USAR) officer with no plan to quit any time soon; therefore, she gave no attention to retirement information.

	d.  she mistakenly did nothing which gave her husband full SBP coverage by default.

	e.  her husband is also a retired Army officer with his own retirement [benefit].  They didn't want to elect any SBP coverage.

	f.  she was confused by the law change since her husband retired in 1989.

3.  She provides:

* Letter from the Army Review Boards Agency
* Letter from USAR Personnel Command (currently U.S. Army Human Resources Command)
* DD Form 2656 (Data for Payment of Retired Personnel)
* Notarized statement
* Marriage certificate

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 15 December 1954.  She was appointed as a Reserve commissioned officer on 21 July 1977 and she was married on 25 March 1979.

2.  The applicant's 20-Year Letter is dated 7 August 2003.  This letter informed her that she was entitled to participate in the Reserve Component SBP (RCSBP) and she was required to submit her election within 90 days of the date of this letter.  There is no evidence she elected to participate in the RCSBP at that time.  However, under the applicable statute she was automatically enrolled for spouse coverage in the full amount. 

3.  She completed a DD Form 2656 and signed this form on 30 July 2013.  She placed an "X" in the first block of item 26g indicating she did not elect to participate in SBP.  She also placed an "X" in the second block of item 26g indicating that she did not have eligible dependents under the plan.  Her spouse signed the DD Form 2656 on 30 July 2013 under Section XII (SBP Spouse Concurrence) to indicate he concurred with the SBP decision made by his spouse.  The document was notarized on 30 July 2013.

4.  In a notarized statement, dated 20 September 2013, the applicant's spouse concurred with her decision to decline the SBP.

5.  Orders published on 23 December 2013 show she was retired and placed on the retired list, effective 15 December 2013.

6.  In an email, dated 12 November 2013, the Defense Finance and Accounting Service informed a staff member that their office had no documents for the applicant and that she was listed as a future retiree in the system.

7.  Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only, if applicable) coverage. 

8.  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.

9.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.

10.  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 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.  The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-year letter.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's 20-year letter was dated 7 August 2003.  It appears she did not respond and accordingly her husband became covered automatically.

2.  The applicant completed and signed a DD Form 2656 on 30 July 2013.  She placed an "X" in the first block of DD Form 2656 indicating she declined participation in the SBP and her spouse concurred with her decision.

3.  Her spouse provided a notarized statement, dated 20 September 2013, that is accepted as sufficient evidence to support his continued concurrence with the applicant's decision to decline enrollment in the RCSBP.

4.  It appears that it was always the applicant's and her spouse’s intent to decline participation in the RCSBP.  They each either had or were working toward their own military retirement.  Unfortunately, the change in the RCSBP law between his 1989 20-Year Letter (and her 2003 20-Year Letter) meant his failure to act resulted in no coverage for her and her failure to act resulted in coverage for him.
5.  Therefore, as a matter of equity, it would be appropriate to correct her records to show she declined to participate in the RCSBP with her spouse's concurrence.

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 to show she and her spouse properly and timely declined to participate in the RCSBP and the declination was received and accepted for processing by the appropriate office, thus resulting in her never being enrolled in the RCSBP.



      _______ _   _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)                                         AR20130017787



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ABCMR Record of Proceedings (cont)                                         AR20130017787



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