IN THE CASE OF:	

		BOARD DATE:	20 August 2015

		DOCKET NUMBER:  AR20140021344


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 military records to show he elected not to participate in the Survivor Benefit Plan (SBP).  He further requests reimbursement of all premiums withheld from his retired pay.

2.  The applicant states, in effect, he declined SBP on his DD Form 2656 (Data for Payment of Retired Personnel) when he submitted his retirement application.  However, the Defense Finance and Accounting Service (DFAS) claims his
DD Form 2656 was never received.  He has tried to obtain a copy of the form from multiple agencies without success.

3.  The applicant provides copies of:

* DFAS Retired Pay summary, dated 12 March 2014 (3 pages)
* Retiree Account Statements dated between March and November 2014
* Email communication dated 10 November 2014 from financial services consultant 
* Letter from the applicant's spouse, dated 17 November 2014 (1 page)
* Notary authentication of spouse's signature, dated 20 November 2014

CONSIDERATION OF EVIDENCE:

1.  On 23 May 1976, the applicant was appointed a second lieutenant in the United States Army Reserve (USAR).  On 29 February 2000, he was promoted to colonel, pay grade O-6.

2.  In a letter dated 2 February 2001, the applicant was notified of his eligibility to receive retired pay at age 60 (20 Year Letter).  This notification informed him that he had 90 calendar days in which to make a Reserve Component SBP (RCSBP) election.  Otherwise, he would not be entitled to SBP coverage until he applied for retired pay at age 60.  The letter did not advise him of the automatic election of option C that provides for the beneficiary to receive an annuity immediately upon his death if before age 60.

3.  A DD Form 2656, signed by the applicant on 27 August 2013, as filed in his Official Military Personnel File (OMPF) shows he elected not to participate in SBP.  The form further shows that his spouse signed the form on 30 August 2013 concurring with the applicant's election not to participate in SBP.  The form was notarized on the same date.

4.  Orders C12-399637, U.S. Army Human Resources Command, dated 
18 December 2013, announced the placement of the applicant on the Retired list effective 26 February 2014 in the rank of colonel, pay grade O-6.

5.  A DFAS Summary of Retired Pay Account, dated 12 March 2014, states in regard to SBP that DFAS had not received the applicant's SBP election certificate; therefore, automatic SBP coverage was provided effective 
26 February 2014.  The monthly SBP cost is shown as $256.88.

6.  The Retiree Account Statements, as provided by the applicant, for the months of March through November 2014, show he was charged an SBP cost of $256.88 for each month.

7.  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.  A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member.  Premiums for insurable interest coverage are generally higher than for any other category of coverage.

8.  Public Law 95-397, the Reserve Component SBP (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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.

9.  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.  Failure to elect an option within 90 days of receiving the notification of eligibility to receive retired pay at age 60 results in the default election of option C.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he elected not to participate in the RCSBP.  He further requests reimbursement of all premiums withheld from his retired pay.

2.  The available evidence shows the applicant was issued a 20-Year Letter that incorrectly advised him that if he did not elect coverage within 90 days, his opportunity to make an election would be deferred until he reached age 60 and applied for non-regular retirement.  Although the letter should have told him that a failure to respond would automatically trigger spouse coverage, it appears he followed the language in his 20-year letter.

3.  The applicant's DD Form 2656 which is currently filed in his OMPF shows his spouse concurred with his election not to participate in the RCSBP.  However, this form is superseded by the law’s requiring an automatic default to full coverage in cases involving 20-Year Letters issued after 1 January 2001.  The form was properly signed, dated, and notarized.  Notwithstanding this fact, it is clear that his spouse does not want RCSBP and accordingly as a matter of equity, it would be appropriate to correct his record to show that he and his spouse timely declined to participate in RCSBP.

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 by:

	a.  showing he submitted a DD Form 1883, dated 2 February 2001, electing not to participate in RCSBP/SBP with his spouse’s notarized concurrence and that his declination was timely submitted and accepted by DFAS; and

	b.  refunding the applicant all RCSBP/SBP premiums collected from his retired pay.



      ___________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)                                         AR20130020212



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ABCMR Record of Proceedings (cont)                                         AR20140021344



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