IN THE CASE OF:	   

		BOARD DATE:	  3 September 2015

		DOCKET NUMBER:  AR20140019092 


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

2.  The applicant states:

	a.  She does not want RCSBP and SBP premiums deducted from her retired pay.  She clearly marked that she did not elect to participate in SBP on the DD Form 2625 (Data of Payment for Retired Personnel).

	b.  Her 20-year letter does not state she had to elect default insurance coverage.  She elected not to have RCSBP/SBP and understands that she will not have insurance coverage upon her death.

	c.  According to the U.S. Army Human Resources Command (HRC), there was a change in law in March 2001 stating an eligible individual would receive insurance coverage upon receiving his or her 20-year letter if taking no action regarding RCSBP.  She was not notified of any change in law.  Her 20-year letter stated no such default option and she does not want insurance premiums taken from her retired pay.

	d.  She found the error when she received her first Army retired paycheck.  She called HRC and the finance office and they stated she needed to submit a request for correction of her records to the Army Board for Correction of Military Records.

3.  The applicant provides:

* reassignment orders, dated 28 March 2005
* retirement orders, dated 9 July 2014
* DD Form 2656
* retiree account statement, dated 29 August 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 29 July 1954.  She was appointed as a Reserve commissioned officer in the rank of first lieutenant in the Army Nurse Corps on 11 February 1981.  She was promoted to lieutenant colonel in the U.S. Army Reserve effective 11 June 1997.

2.  Her notification of eligibility for retired pay at age 60 (20-year letter) was issued on 14 March 2001.  This memorandum states:

	a.  "By law, you have only 90 calendar days from the date you receive this memo[random] to submit your DD Form 1883, Survivor Benefit Plan-Election Certificate."

	b.  "If you do not submit your election within 90 calendar days, you will not be entitled to survivor benefit coverage until you apply for retired pay at age 60."

	c.  "If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits."

3.  There is no indication she made an election.

4.  Defense Finance and Accounting Service (DFAS) records show she was automatically enrolled in the RCSBP for spouse coverage, option C (immediate annuity), in 2001.

5.  She was assigned to the Retired Reserve in the rank of lieutenant colonel effective 28 March 2005.

6.  She provided a DD Form 2656 which shows she elected not to participate in the SBP on 30 September 2013.  Her spouse concurred with her election.

7.  She was placed on the Retired List effective 29 July 2014.

8.  She provided her Retiree Account Statement, dated 29 August 2014, which shows she is paying SBP and RCSBP (spouse coverage) premiums.

9.  She also provided a notarized statement from her spouse, dated 31 August 2015, which states he understands he is currently the lawful beneficiary and that had he been given the opportunity in 2001 he would have concurred in the applicant's decision to decline SBP coverage.

10.  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.

11.  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, or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Once a member elects either options B or 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 and RCSBP coverage automatically converts to SBP coverage.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows she received her 20-year letter in March 2001.  This letter instructed her:

	a.  "By law, you have only 90 calendar days from the date you receive this memo[random] to submit your DD Form 1883, Survivor Benefit Plan-Election Certificate."

	b.  "If you do not submit your election within 90 calendar days, you will not be entitled to survivor benefit coverage until you apply for retired pay at age 60."

	c.  "If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits."

2.  When she applied for retired pay at age 60 on 30 September 2013, she elected not to participate in the SBP and her spouse concurred with her election.  However, DFAS records show she was automatically enrolled in the RCSBP for spouse coverage, option C (immediate annuity), because she failed to make an election within 90 days of receipt of her 20-year letter in 2001.

3.  Although the law states that if the Soldier fails to make a valid RCSBP election within 90 days of notification of eligibility for non-regular retirement, automatic enrollment of the spouse and or children is required at maximum coverage (option C, full base amount) effective 1 January 2001, her 20-year letter did not inform her that it would result in the automatic enrollment if she failed to make an RCSBP election within 90 days.  Instead it continued to recite the old law in which failure to respond resulted in no coverage.

4.  The applicant complied with the terms of her 20-year letter in good faith and did absolutely nothing wrong.  She should not be penalized by this involuntary costly premium as a result of HRC's issuance of a 20-year letter that was no longer legally relevant.

5.  She provided a notarized statement from her spouse, dated 31 August 2015, which states had he been given the opportunity in 2001 he would have concurred in the applicant's decision to decline SBP coverage.  Therefore, it would be in the interests of equity and justice to correct her records to show she elected not to participate in the RCSBP on 1 April 2001 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 the evidence presented is 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 she elected not to participate in the RCSBP on 1 April 2001 with her spouse's concurrence.



      _______ _   _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)                                         AR20140019092



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ABCMR Record of Proceedings (cont)                                         AR20140019092



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