IN THE CASE OF:  

		BOARD DATE:  10 February 2015	  

		DOCKET NUMBER:  AR20140011688 


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 of his records to show he elected enrollment in the Reserve Component Survivor Benefit Plan (RCSBP) under Option C (Immediate Annuity) instead of Option A (I decline to make an election until Age 60).

2.  The applicant states that in January 2014 he reconsidered his election and thought it would be in his family's best interest to change his RCSBP election from Option A to Option C.  

3.  The applicant provides:

* 2 letters
* 2 memoranda
* DD Form 2656-5 (RCSBP Election Certificate)
* DD Form 2656-6 (SBP Election Change Certificate)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in February 1974.  He will turn 60 years of age in February 2034.

2.  Having prior enlisted service, he was appointed as a Reserve commissioned officer and executed an oath of office on 20 January 1995.  He served in a variety of positions and assignments most recently in the Tennessee National Guard.
3.  On 15 April 2013, Joint Force Headquarters (JFHQ) Tennessee National Guard Houston Barracks issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) to the applicant.  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:

   a.  you are eligible to participate in the RCSBP.  The RCSBP will provide an annuity based on your retired pay to a surviving spouse, spouse and dependent child or children, child or children only, or a person with an insurable interest in you; and

   b.  upon receipt of the Notification of Eligibility, if you are married, or have a dependent child you will automatically be enrolled in accordance with Title 10, U.S.C. Section 1448(a)(2)(B) in the RCSBP under option C, Spouse and Child(ren), based on full retired pay unless you elect different or no coverage within 90 days after the date you receive this notification.  If you are married on the date of your election, and you elect less than full and immediate coverage, your spouse’s concurrence is required by law.  That concurrence will be recorded in section IX of DD Form 2656-5, and the signature must be notarized.   

4.  On 1 May 2013, he completed a DD Form 2656-5.  He indicated he was married to J_______ and had two children.  He elected to take Option A, declining to make an election until age 60.  His spouse, J_______, concurred with this election and her signature was notarized.  The DD Form 2656-5 states:

* a decision to participate, that is to select either Option B or C, is permanent and cannot be changed unless authorized by law
* a decision to decline RCSBP coverage means he would not have another opportunity to select SBP coverage until age 60
* he was required to submit this form within the 90-day period after being notified of eligibility for retired pay at age 60
* if he did not submit this form as required, his election, if any, would be determined by law

5.  The applicant provides:

   a.  an unaddressed letter, dated 19 January 2014, in which he states he attended a retirement seminar in the fall of 2013 in order to learn best about the options available for retirement, and specifically the benefit options of the SBP and RCSBP.  His initial election was to decline the SBP/RCSBP, with the understanding that he would be able to change his election within the first year of eligibility or at the age in which he was eligible for retired payments.  Since he was still within one year of eligibility, he reconsidered the value of SBP/RCSBP and now believes it would be an injustice to his wife and children should something happen to him within the next 20 years and they would not receive any benefits of his retirement pay;

   b.  DD Form 2656-6, dated 10 January 2014, requesting spouse and children SBP coverage based on full retired pay;

   c.  a memorandum, dated 8 April 2014, issued by a Retirement Services Noncommissioned Officer, JFHQ Tennessee National Guard, who states the applicant’s request to change his coverage would not be processed by the U.S. Army Human Resources Command and his original election was being honored because no "life changing events" occurred to warrant a change; and
   
   d.  an unaddressed letter, dated 14 April 2014, in which he states he was unable to attend a retirement seminar within 90 days of becoming eligible to elect the RCSBP; therefore, he elected Option A, with the understanding that he could make an election change within one year of becoming eligible.  After receiving RCSBP/SBP education he was advised he could request to change his enrollment with 12 months of eligibility; otherwise, he would not be able to change his election unless there was a future change in the status of his dependents.

6.  Public Law 92-425, the SBP, enacted 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.

7.  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.  If the member dies before reaching age 60, premiums are deducted from the annuity.

8.  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.  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.  By law and regulation, Reserve Component 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.  

2.  The available evidence shows the applicant received a 20-year letter based on his completion of 20 qualifying years of service.  The letter clearly and completely explained the available options and requirements of law concerning submission of his RCSBP election.

3.  The applicant’s DD Form 2656-5 clearly states, "A decision to decline RCSBP coverage means you will not have another opportunity to select SBP coverage until age 60."  There is no one-year period upon eligibility in which to change a properly executed election when it is based on election to participate or to decline participation.

4.  By electing Option A, the applicant was required to obtain spousal consent to decline RCSBP coverage.  On 1 May 2013, his spouse, J_______, concurred with the election and her signature was notarized.

5.  The applicant's contention that he was unable to attend a retirement seminar within 90 days of becoming eligible to make an RCSBP election is not sufficiently convincing.  Regardless, the applicant must bear the responsibility for not exercising due diligence with regard to his RCSBP election.  If he did not understand the instructions explicitly stated on the form, he should have sought assistance at that time.  Further, he provides no independent evidence showing that any Government official gave him incorrect advice.

6.  In light of the foregoing, there is insufficient evidence to show an error or an injustice occurred in this case.  The applicant will have the opportunity to submit an SBP election when he reaches 60 years of age and applies for retired pay or during any Congressionally authorized open enrollment period should one occur.

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)                                         AR20140011688



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140011688



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1