IN THE CASE OF: 

		BOARD DATE:	    18 March 2014

		DOCKET NUMBER:  AR20140002769 


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 elected participation in the Survivor Benefit Plan (SBP).  

2.  The applicant states he elected to participate in the SBP.  The documents were completed and submitted with the rest of his retirement paperwork.  For some reason his election was not processed and it appears it may have been lost in processing. 

3.  The applicant provides:

* Statement from a retirement counselor
* Statement from another individual
* Letter from the Defense Finance and Accounting Service (DFAS)
* Congressional correspondence
* Retirement letter from DFAS
* Orders transferring him to the Retired Reserve
* National Guard Bureau (NGB) Form 23B (Army National Guard (ARNG) Current Annual Statement)
* NGB Form 22 (Report of Separation and Record of Service)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Retiree Account Statement
* Noncommissioned Officer Evaluation Report



CONSIDERATION OF EVIDENCE:

1.  The applicant was born in June 1951.  He and Margaret were married on 11 November 1984.  

2.  Having had prior service, the applicant enlisted in the ARNG on 21 March 1969.  He served through multiple extensions in a variety of assignments and he attained the rank of first sergeant (1SG)/E-8. 

3.  On 30 March 1989, the North Carolina ARNG (NCARNG) issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified him that he had completed the required years of service and he would be eligible for retired pay at age 60, upon application.  This letter further informed him of his eligibility for enrollment in the RCSBP and the options available to him.

4.  On 30 May 1989, the applicant completed a DD Form 1883 (SBP Election Certificate).  He indicated he was married to Margaret and they had three children, born in 1975, 1978, and 1988 respectively.  He elected Option A (Defer Coverage) of the Reserve Component SBP (RCSBP).  He and his spouse, Margaret, authenticated this form with their signatures. 

5.  On 7 January 1997, the NCARNG issued orders transferring him to the Retired Reserve effective 31 March 1997. 

6.  On 31 March 1997, he was honorably discharged from the ARNG and he was transferred to the Retired Reserve.  His NGB Form 22 and NGB Form 23B show he completed 28 years of qualifying service for retirement. 

7.  As he approached age 60, he submitted an application for retirement.  With his application, he completed a DD Form 2656 (Data for Payment of Retired Personnel) on 20 June 2009 and indicated he was married to Margaret.  He placed an "X" in the block "I elect not to participate in SBP."  

* He and a witness authenticated this form on 20 June 2009
* His spouse, Margaret, indicated she concurred with his election and authenticated this form on 20 June 2009
* A Notary Public notarized the form on 20 June 2009

8.  On 11 April 2011, the U.S. Army Human Resources Command published orders placing him on the Retired List in his retired rank/grade of 1SG/E-8 effective 28 June 2011. 

9.  On 29 June 2011, by letter, DFAS notified him that a retirement pay account had been established for him.  The letter advised him of the amount of his retired pay and applicable deductions and taxes.

10.  His August 2011 Retiree and Account Statement shows the entry "No SBP is reflected on your account." 

11.  On 31 December 2013, by letter, DFAS informed him that he declined the SBP at the time of his retirement.  Once SBP is declined, a spouse cannot be added unless there is an Open Season.  

12.  He provides two statements: 

	a.  A statement, dated 3 February 2014, from an ARNG retirement counselor, who states he has been helping the applicant with his SBP application. 

	b.  A statement, dated 13 June 2012, from an individual who states he assisted the applicant with his retirement application.  He discussed the election with the applicant at the time and the applicant took the paperwork home that day.  Several days later, the applicant returned with a form electing to receive an immediate annuity.  The form was added to and submitted with his retirement application. 

13.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.

14.  Public Law 95-397, enacted 30 September 1978, provided a way for RC members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:  

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60




DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, RC Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The law in effect at the time required the Soldier to make an election and return the enrollment form.  The applicant's records show he made an election and elected Option A (I decline to make an election until Age 60).  His spouse, Margaret, concurred with this election by placing her signature in the appropriate block.  

2.  As he approached age 60, he submitted an application for retirement.  With his application, he completed a DD Form 2656 and indicated he was married to Margaret.  He placed an "X" in the block "I elect not to participate in SBP."  His spouse concurred with his election not to participate in the SBP.  The form was witnessed, signed, notarized, and entered military channels.

3.  Further, notwithstanding his allegation and his statement of his supporting witness, it is clear the applicant and his spouse declined coverage.  If in fact no declination of coverage had been transmitted to DFAS, he would have defaulted to full spouse coverage by operation of law. 

4.  The decision to participate or not to participate in the RCSBP/SBP is a personal decision made by the Soldier.  The applicant in this case deferred his election to age 60 upon receiving his 20-year letter and elected not to participate in the SBP upon reaching age 60.  Once SBP is declined, a spouse cannot be added unless there is an Open Season.

5.  Only a decision by Congress to initiate a free period of enrollment called an “Open Season” would allow a retiree to begin a new election after retirement. Such periods are rare.  The most recent Open Season was in 2005.  It is unknown when the next Open Season will occur. 

6.  The applicant is not entitled to the requested relief.  

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)                                         AR20140002769



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ABCMR Record of Proceedings (cont)                                         AR20140002769



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