IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140010035 


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:

* termination of her participation in the Survivor Benefit Plan (SBP)
* an audit of her retirement points
* correction of her last name on her retired pay records

2.  The applicant states:

	a.  Prior to her divorce from William W--t, she had elected to enroll in the Reserve Component SBP (RCSBP) in 1996.  She and William were divorced in October 1997.  She married Stephen Br---e in November 1998 and she changed her identification card to read his last name (Br---e).  She was not advised by the Retirement Services Officer (RSO) to submit a DD Form 2656-6 (SBP Election Certificate Change) within one year of her remarriage to opt out.  At the time of her retirement, there was no RSO assigned to her base.  

	b.  In November 2010, she submitted an application for retired pay to ensure she would receive retired pay in October 2013, at age 60.  Prior to receiving her first check, she contacted the U.S. Army Human Resources Command (HRC) on multiple occasions to ensure her documents were in order prior to being sent to Defense Finance and Accounting Service (DFAS) for processing.  Not once did anyone question the old DD Form 2656 (Date for Payment of Retired Personnel) that was on file and listed her last name as "W--t."  She was assured her documentation were correct.  Consequently, her Retiree Account Statements were issued in both names, "Br---e" and "W--t," even though the divorce decree and the new marriage certificate were both sent on several occasions, along with the retirement packet in November 2012. 

	c.  She has been in contact with DFAS and her Member of Congress.  She has received several responses about how to make the change to her retired pay last name and she was advised to apply to this Board.  She has continued to explore all possible avenues to resolve some of these administrative issues.  But, considering a Retirement Officer was not stationed on base in 1996 or in 1998, she feels she was ill-advised on both occasions.  Although there have been some corrections made, there are still some outstanding errors that have not been corrected, such as the service for basic pay (38 years, 2 months, and 20 days).  She has requested her Leave and Earnings Statements but has not received them from DFAS yet. 

3.  The applicant provides:

* Previous application to this Board and a failure to exhaust letter
* Letter dated 23 May 2014 from DFAS to her Member of Congress
* DD Form 2656, dated 15 November 2012
* DD Form 2656-6, dated 7 January 2014
* Copy of her military identification card
* Letter, dated 6 February 2014, to an RSO in Monterey, CA
* Letter from the National Personnel Records Center
* Notification of Eligibility for Retired Pay at Age 60
* Letter from DFAS-Retired and Annuity Pay, welcoming her to the Retired roll of the United States
* January 2014 Retiree Account Statement
* Army National Guard (ARNG) Retirement Points History Statement
* Multiple DD Forms 214 (Report of Separation from Active Duty)
* Multiple National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service) with corrections
* HRC Form 249 (Chronological Statement of Retirement Points) 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she was born on XX October 1953.  She and William W--t were married on 11 October 1980. 

2.  Having had prior enlisted service in the ARNG, she was appointed as a Reserve warrant officer of the AZARNG and executed an oath of office on 16 September 1985.  She served in a variety of assignments and she was advanced to chief warrant officer three (CW3). 
3.  On 24 July 1996, AZARNG issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

4.  On 27 September 1996, she completed a DD Form 1883 (SBP Election Certificate).  She indicated she was married to William W--t and they had no dependent children.  She elected "spouse only" RCSBP coverage, under Option C (immediate coverage), based on the full amount.  She and her spouse William W--t authenticated this form with their signatures.  This form shows the entry: 

Important: The decision you make with respect to participation in the SBP is a permanent irrevocable decision.  Please consider your decision and its effects very carefully. 

5.  On 3 November 1997, she and William W--t were divorced.  Their divorce decree states William waived in favor of the applicant 100 percent of all present and future claims to any and all accrued retirement benefits. 

6.  She was transferred to the Retired Reserve on 1 December 1997.  She was issued an NGB Form 22 that captured her ARNG service. 

7.  On 28 October 1998, she married Stephen Br---e.  

8.  In or around November 2012, she submitted an application for retired pay.  With her application, she completed a DD Form 2656.  She indicated she was married to Stephen Br---e and they had no dependent children.  She elected not to participate in the SBP and authenticated this form with her signature on 15 November 2012.  Her spouse Stephen concurred with her election. 

9.  On 23 October 2013, HRC published Orders C10-397810 placing her on the Retired List in her retired grade of CW3 effective 30 October 2013, her 60th birthday.  

10.  Her December 2013 Retiree Account Statement shows she has "spouse" SBP coverage with a total cost consisting of the SBP portion and the RCSBP portion.  

11.  On 23 May 2014, by letter, an official at DFAS responded to her Member of Congress in relation to several issues.  He stated: 

	a.  DFAS audited her retired pay account and found her pay was computed properly.  She claimed that her account should include several retirement points from 1974 to 1996 and a review of her retirement points.  This is a function of her service and her concerns should be addressed with HRC.  DFAS sent a letter to HRC in that regard.  

	b.  She elected an immediate RCSBP annuity for her spouse, William, on 26 September 1996.  She divorced William on 3 November 1997 and married Stephen on 28 October 1998.  In accordance with Title 10, U.S. Code, section 1448(a)(6)(c), a member who is a participant in the SBP, but who does not have an eligible spouse, may upon remarriage elect not to resume coverage, elect to resume coverage at the current level, or elect to increase coverage.  The retiree must exercise one of the three options within the first year of remarriage.  The new spouse automatically becomes an eligible beneficiary upon the one-year anniversary date if the retiree fails to make an election within one year.  

	c.  When she reached retirement eligibility, she submitted a DD Form 2656, on which she elected not to participate in the SBP.  However, since she had previously filed a valid RCSBP election for immediate spouse coverage, the RCSBP election voided her current SBP election, and therefore the RCSBP election remains valid and cannot be removed unless her marital status changes. A valid RCSBP election supersedes all other SBP elections made by the retiree, including any SBP election made at the time the service member is placed on the military retired rolls.  As a result, her RCSBP account was established with spouse coverage.  

	d.  Upon further review, DFAS determined her RCSBP election was received within 90 days of the suspense date and is considered a valid election.  Therefore, her account was adjusted from declined coverage to reflect the RCSBP coverage upon retirement, which increased her premiums.  She has incurred a debt of $52.60 as a result and DFAS enclosed an SBP Adjustment Audit Worksheet and letter explaining the debt. 

12.  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. An election, once made, was irrevocable except in certain circumstances.  This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

13.  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: 
* 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

14.  Once a member elects either option B or option C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP - the options automatically roll into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.

15.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant raises three issues:  her retired pay last name, her retirement points calculation, and her SBP enrollment. 

2.  With respect to her last name: 

	a.  Army Regulation 15-185, paragraph 2-5, section II, the regulation under which this Board operates, states the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.  

	b.  A retired service member can request a change to their official military records at any time.  Changes include information such as name, social security number, date and/or place of birth.  The applicant can submit her request in letter format or on a Standard Form 180 (Request Pertaining to Military Records), together with supporting evidence (marriage certificate, divorce decree, legal name change, etc) to the Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDR-V, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.

	c.  Once updated by HRC, her DFAS retired pay records would reflect the new last name.

3.  With respect to the calculation of her retirement points, again her request is premature: 

	a.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Again, paragraph 2-5 states that the Board will not consider any application if it determines that the applicant has not exhausted all administrative remedies available to him/her.  

	b.  If the applicant believes her HRC Form 249 is incorrect and does not show all of her retirement points and/or qualifying service for non-regular retirement, she must contact the Commander, U.S. Army Human Resources Command, ATTN: AHRC-PSR, 1600 Spearhead Division Avenue, Department 100, Fort Knox, KY 40122 for correction of this form.  She is advised to submit proof of her entitlement to retirement points, such as (but not limited to): 

* All DD Forms 214 and/or NGB Forms 22
* Leave and Earnings Statements
* DA Forms 1380 (Record of Individual Performance of Reserve Duty Training)
* Active duty orders and other documents supporting retirement points credit  

	c.  Because she has not exhausted her administrative remedy for correction of her retirement points, the ABCMR cannot take any further action at this time. 

4.  With respect to the SBP: 

	a.  When the applicant received her 20-year letter in 1996, she submitted a DD Form 1883 wherein she elected enrollment in the RCSBP, spouse coverage, under Option C.  RCSBP elections are by category, not by name.  This means in the event she died before reaching age 60, her beneficiary would have been entitled to an annuity.  

	b.  The options were clear and are clearly stated on the form she executed in 1996 with an important warning to consider her permanent, irrevocable decision wisely.  The decision to participate in or disenroll from the RCSBP/SBP is a personal decision.  She made a choice.  Had she died before age 60, her current husband would have been entitled to the annuity. 

	c.  Once a member elects either option B or option C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP - the options automatically roll into SBP coverage.  In other words, the DD Form 2656 she submitted in 2012 in conjunction with her application for retired pay was an invalid election. 

	d.  Additionally, if RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.  This cost is the cost of coverage the applicant enjoyed between the date she made the election in 1996 and the date she turned 60.  Again, had she died during this period, her beneficiary spouse would have been entitled to the annuity.  

	e.  However, by law, retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from 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.  The applicant retired on 30 October 2013.  Her window to terminate SBP coverage begins on 1 November 2015 and ends on 30 October 2016.  She may write directly to DFAS to request termination during the period of eligibility.  She should also be advised that even if she terminated coverage during the period of eligibility, the RCSBP portion of the premiums continues for life.

5.  After comprehensive review of her records, there does not appear to be a Government error and there is no injustice.  She is not entitled to relief either due to law or inequity. 

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)                                         AR20140010035



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ABCMR Record of Proceedings (cont)                                         AR20140010035



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