IN THE CASE OF:	  

		BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140009520 


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 records to show she elected enrollment in the Reserve Component Survivor Benefit Plan (RCSBP) under Option A instead of Option C.

2.  The applicant states:

* she and her husband completed the DD Form 2656-5 (RCSBP Election Certificate) and had their signatures notarized on 1 July 2011
* the completed form was then personally provided to the administrative noncommissioned officer, Master Sergeant (MSG) Cxxxxxx, at Joint Forces Headquarters, Pennsylvania Army National Guard (PAARNG)
* when the applicant received notice of automatic enrollment in Option C, MSG Cxxxxxx assured the applicant her DD Form 2656-5 had been properly recorded; MSG Cxxxxxx promised to resolve the issue
* she realized no correction had been made when she later reviewed her RCSBP with the retirement advisor

3.  The applicant provides:

* 20-year letter dated 23 May 2011
* DD Form 2656-5 signed and dated 1 July 2011
* affidavit
* memorandum
* printout from U.S. Army Human Resources Command (HRC) website

CONSIDERATION OF EVIDENCE:

1.  The applicant was born 15 December 1968.  She and her spouse, Exxx, were married on 17 September 1994.

2.  On 30 April 1991, she enlisted in the PAARNG.  She served in a variety of positions and attained the rank/grade of staff sergeant/E-6.  After having been appointed as a Reserve Commissioned Officer in the U.S. Army, on 5 March 1998, she requested Federal recognition as a Warrant Officer 1.

3.  On 23 May 2011, the PAARNG issued her a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified her that she had completed the required years of service and she would be eligible for retired pay upon application at age 60.

4.  On 1 July 2011, she completed a DD Form 2656-5.  She indicated she was married to Exxx and had no children.  She elected to take Option A, declining to make an election until age 60.  Her spouse, Exxx, concurred with this election and his 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 she would not have another opportunity to select SBP coverage until age 60
* she was required to submit this form within the 90-day period after being notified of eligibility for retired pay at age 60
* if she did not submit this form as required, her election, if any, would be determined by law

5.  Her record contains an untitled form (hereinafter referred to as acknowledgement form) which essentially certifies the applicant received her 
20-year letter and was counseled on the SBP.  The form states it must be completed and returned to PAARNG not later than 15 July 2011, with a specific address provided.  In this acknowledgement form, the applicant affirmed the DD Form 2656-5 was required to be completed within 90 days from the date of her 20-year letter.  Also on the form was a statement saying, effective 31 December 2000, personnel receiving a 20-year letter were automatically enrolled in Option C (coverage for spouse and children).  The applicant signed this form on 14 August 2011.

6.  The 90th day from the date of the 20-year letter was 20 August 2011.

7.  On 25 August 2011, a memorandum, SUBJECT:  RCSBP Election, from Department of Military and Veterans Affairs, Adjutant General's Office, Commonwealth of Pennsylvania, provided notice to the applicant she was enrolled in Option C because her election was not received within 90 days.

8.  The Soldier Management System (SMS), managed by the U.S. Army Human Resources Command (HRC), records the date documents are added to the Interactive Personnel Electronic Records Management System (IPERMS), the Army's automated personnel records system.  SMS shows the applicant's DD Form 2656-5 was added on 27 September 2011.

9.  On 30 September 2014, the applicant was honorably separated from the PAARNG and transferred to the Retired Reserve, having completed 20 years of service.

10.  The applicant provides an affidavit made by the person who notarized her spouse's signature on the DD Form 2656-5.  This person affirms the signature was completed on 1 July 2011, as shown on the form.

11.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component 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

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.  Public Law 106-398 requires an election to be made within 90 days of notification of eligibility to receive retired pay at age 60.  On 14 August 2011, 7 days prior to the expiration of the 90-day period, the applicant acknowledged the requirement to submit her election within 90 days of the date on the 20-year letter.

2.  The evidence is clear she and her spouse signed and notarized the DD Form 2656-5 on 1 July 2011, well within the 90-day window.  Additionally, she states she submitted the DD Form 2656-5 to the appropriate person prior to the deadline.  This person, however, failed to assure the form's timely receipt by proper authority, as evidenced by the memorandum dated 25 August 2011, SUBJECT:  RCSBP Election.  As a matter of equity, the option selected should be changed from Option C to Option A effective the date she and her spouse signed the DD Form 2656-5.

3.  Based upon the foregoing, the evidence does support granting the relief requested.

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 showing she selected Option A on 1 July 2011, and her request was received and processed by the appropriate office in a timely manner.




      _______ _   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)                                         AR20140009520





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ABCMR Record of Proceedings (cont)                                         AR20140009520



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