RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 October 2007 DOCKET NUMBER: AR20070006453 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Mr. Mohammed R. Elhaj Analyst The following members, a quorum, were present: Mr. John Slone Chairperson Mr. John T. Meixell Member Mr. David W. Tucker Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his records be corrected to show that he elected to change his Survivor Benefit Plan (SBP) coverage from children only coverage to spouse coverage upon marriage and that the two-year waiting period to affect the change in beneficiary be waived. 2. The applicant states, in effect, that upon retirement from the Utah Army National Guard (UTARNG), he was unmarried and thus elected the children only coverage of the Reserve Component SBP. He further states that on 24 January 1991, he was married and mobilized at the same time and that he tried for several months, unsuccessfully, to change the coverage from children only coverage to spouse coverage. He concludes that the exchange of emails with members of the U.S. Army Human Resources Command (HRC), Defense Finance and Accounting Service (DFAS), and the UTARNG led to contradicting guidance regarding a two-year window to change coverage, which further added to his frustrations. 3. The applicant provides the following documentation in support of his application: a. Self-authored letter, dated 2 March 2007, from the applicant further explaining the different entries on his DD Form 149 (Application for Correction of Military Records). b. Self-Authored letter, dated 9 March 2007, from the applicant to a Member of Congress, describing his attempts to change the SBP coverage. c. Self-authored letter dated 26 March 2005, from the applicant to another Member of Congress, asking for assistance and describing his attempts to resolve the SBP coverage problem. d. Letter from The Adjutant General (TAG), State of Utah National Guard, dated 12 January 2006, responding to the applicant's letter dated 29 November 2005. e. Letter from the applicant's Member of Congress to the applicant, dated 26 January 2006. f. Extracts of electronic mail (email) exchange between the applicant and outside agencies (DFAS, HRC, and UTARNG) dated November 2005 to February 2006. 4. This application was dated 2 March 2007 by the applicant and received by the Army Board for Correction of Military Records (ABCMR) on 27 April 2007. Regrettably, the applicant died on 18 April 2007. As a result of the applicant's death, his spouse is now requesting immediate annuity under the SBP due to death of her spouse, a former service member (FSM). CONSIDERATION OF EVIDENCE: 1. The FSM's records show that he was born on 2 January 1945. He enlisted in the Utah Army National Guard on 30 April 1966. He subsequently had a series of reenlistments in the UTARNG and in the Regular Army. 2. On 15 November 1986, the Departments of the Army and the Air Force, National Guard Bureau, Falls Church, Virginia, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 3. On 1 December 1986, the FSM completed his DD Form 1883 (Survivor Benefit Plan Election Certificate). In Section II (Marital, Dependency, and Election Status), he indicated that he was unmarried and had dependent children. He elected to participate in the RCSBP with “Children Only” full coverage under Option C (Immediate Coverage). He listed the following unmarried children: M*******, DOB 13 April 1969. T*******, DOB 8 March 1974 M******, DOB 10 September 1976 4. On 24 January 1991, the FSM married his current spouse. 5. The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was ordered to active duty in support of Operation Desert Shield/Desert Storm on 25 January 1991 and demobilized on 6 June 1991. 6. Headquarters, UTARNG, Office of The Adjutant General, Draper, Utah, Orders 153-116, dated 26 August 1991, show that the FSM was discharged from the Army National Guard and assigned to the U.S. Army Reserve Control Group (Retired) effective 31 August 1991. 7. On 9 April 2003, the FSM completed and submitted to the Human Resources Command, St. Louis, Missouri, a DD Form 2656 (Data for Payment of Retired Personnel). In Section IX, he indicated that he did not have dependent children. He elected to participate in the SBP with "Spouse Only Coverage" and that "Coverage to be based on Full Gross Pay without Supplemental SBP." 8. The applicant turned 60 years old on 2 January 2005. U.S. Army Reserve Personnel Command Orders P10-489145, dated 27 October 2004, show that the FSM was retired and placed on the retired list effective 2 January 2005. At this time when his RCSBP rolled over into SBP, his children were no longer eligible beneficiaries because of their ages. 9. On 4 November 2005, the Chief, Transition and Separation Branch, HRC, St Louis, emailed DFAS indicating that despite the submitted DD Form 2656, the FSM's Leave and Earnings Statement (LES) continued to show his son as the annuitant. DFAS responded on 7 November 2005, indicating that the FSM had RCSBP, child only, and that he was paying the RCSBP add-on cost only. HRC responded on 14 November 2005, stating that "the child fell off when he reached age 18 in 1994, the FSM did not enroll current spouse within the 1 year period, but did enroll her at the next earliest opportunity during his application for retirement at age 60." HRC inquired "Why can't the FSM enroll her in this manner?" 10. On 15 November 2005, the FSM emailed HRC, and stated that he had been waiting for several months for correction of his SBP beneficiary. He further summarized the events in his email and concluded by saying "I am not going to let this drag out any longer. Please let me know by phone or email what is being done regarding this by 18 November 2005." 11. On 20 December 2005, HRC emailed DFAS (responding to HRC's email dated 14 November 2005) and asked "If the FSM elects to cover spouse during the open season, then his premium coverage would start at age 60, is this correct?" DFAS responded on 21 December 2005 and said: "Yes, he (the FSM) can make an open season election." 12. On 21 December 2005, HRC emailed the FSM, apologizing for giving him (the FSM) erroneous information regarding enrollment within 1 year of his marriage. HRC added in his email to the FSM "You may enroll your spouse in the SBP at this time using the Open Season as you had previously suggested. I am sending you the necessary form and an envelope to send the enrollment directly to [DFAS]. 13. On 30 December 2005, the FSM emailed HRC and requested the regulation that covers the SBP. HRC responded to the applicant on 3 January 2006. In an email, HRC summarized the situation, informing the FSM that HRC did not keep manuals, and directed him to DFAS for information regarding retirements and costs. HRC also suggested that the FSM apply to the ABCMR for correction of his military records and indicated that HRC would support his (the FSM) request if HRC were asked for an advisory opinion. 14. On 10 January 2006, the FSM exchanged emails with a staff sergeant (SSG) who worked in the retirement office, military personnel, State of Utah. The SSG informed the FSM that she had faxed the DD Form 2656 to DFAS and was working with someone at DFAS to resolve his situation. 15. On 26 January 2006, the Utah The Adjutant General sent a letter to the FSM informing him that the only documents DFAS needed to affect the change in coverage was his marriage license. 16. On 13 February 2006, the SSG emailed the FSM and told him that DFAS had not processed his paperwork as of this date. 17. On 21 February 2006, the FSM emailed the SSG and informed her that he received a letter from the Retired and Annuity Pay Operations Office at DFAS informing him that his DD Form 2656 was invalid since he did not complete the DD Form 2656-9 (SBP and RCSBP Open Enrollment Election). The letter further asked the FSM to complete the DD Form 2656-9 and return it to DFAS. 18. On 28 February 2006 and 10 April 2006, the FSM followed up with emails to the SSG inquiring about the status of his spouse enrollment. The SSG responded on 11 April 2006 with an email stating that she was told conflicting information and that the FSM must complete the open enrollment form. 19. The applicant's Retiree Account Statement throughout 2005 and 2006 still showed he was paying for SBP children only full coverage. Contact with DFAS confirmed that the applicant had completed and submitted a new SBP request adding his spouse. However, DFAS, for an unknown reason, could not make the change the FSM requested. 20. On 18 April 2007, the FSM died at the age of 62. 21. Title 10, U. S. Code, section 12731(a)(d), states in pertinent part, a Soldier is entitled, upon application, to retired pay computed under section 12739 of this title if the Soldier is at least 60 years of age and has performed at least 20 years of qualifying service while a member of the reserve component of an armed force. The Secretary concerned shall notify each Soldier who has completed the years of service required for eligibility for retired pay. The notice shall be sent, in writing, to the Soldier within one year after the Soldier completes that service. The written communications shall include notice of the elections available to such persons under the SBP, the Supplement SBP and the effect of such elections 22. Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child. 23. Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), 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 death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay (costs for option C being the more expensive). 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 – it automatically rolls 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. 24. Public Law 108-375, enacted 28 October 2004, established an SBP Open Season from 1 October 2005 through 30 September 2006. To apply, members were required to complete a DD Form 2656-9, Survivor Benefit Plan (SBP) and Reserve Component Survivor Benefit Plan (RCSBP) Open Enrollment Election. Elections must have been submitted to the Service designated agent [Director, DFAS-US Military Retired Pay, PO Box 7130, London, KY 40742-7130] indicated in the instructions on DD Form 2656-9. All elections were required to be postmarked by 30 September 2006. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that the FSM is entitled to correction of his records to show he elected to change his RCSBP coverage from children only coverage to spouse coverage under the SBP and that the two-year period be waived. 2. When he received his 20-Year Letter in November 1986, the FSM completed DD Form 1883 indicating that he was unmarried and desired RCSBP coverage for children only, with an annuity based upon the full amount of his retired pay, with coverage to begin immediately (Option C). 3. When the FSM remarried on 23 January 1991, by law, he had 1 year to request, in writing, spouse coverage for his wife. He was required to submit a copy of his marriage certificate upon application. 4. On 9 April 2003, the FSM completed and submitted DD Form 2656 (Data for Payment of Retired Personnel) to HRC, St. Louis, Missouri. In Section IX, he indicated that he did not have dependent children and elected to participate in the SBP with "Spouse Only Coverage" and that "Coverage to be based on Full Gross Pay without Supplemental SBP." However, because the FSM elected Option C when he received his 20-Year Letter in 1986, by law, he did not have the option to enroll his spouse in the RCSBP upon application for retired pay at age 60. That opportunity was available only if he had elected Option A (decline coverage until reaching retired pay eligibility at age 60) in 1986. 5. The only legitimate periods during which the FSM could have enrolled his spouse in SBP coverage following the 1-year anniversary of their marriage were during authorized Open Seasons: (1) Public Law 101-510, enacted 5 November 1990, established an Open Season to be conducted during the period 1 April 1992 – 31 March 1993; (2) Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted during the period 1 March 1999 – 29 February 2000; (3) The National Defense Authorization Act for Fiscal Year 2005 establishes an Open Season to be conducted 1 October 2005 to 30 September 2006. It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. The retiree must pay monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so. Extensive publicity was given in Army Echoes. 6. The FSM had legitimate opportunities to enroll his spouse from 23 January 1991 – 22 January 1992, from 1 April 1992 – 31 March 1993, from 1 March 1999 – 29 February 2000, and 1 October 2005 – 30 September 2006. He made no effort to do so until 9 April 2003 when he applied for retired pay. 7. For reasons known only to the FSM, the FSM apparently became focused with the idea of enrolling his spouse for SBP spouse coverage from April 2003. Unfortunately, at that particular time, his only legitimate opportunity was during the Open Season from 1 October 2005 through 30 September 2006. Even if the FSM's records were corrected to show that he enrolled his spouse in the SBP effective 1 October 2005 (the earliest date under the Open Season), by law, he would have had to survive until 1 October 2007 in order for the spouse to qualify. Unfortunately, the FSM passed away on 18 April 2007, some 5 months and 13 days before the applicant could be vested. 8. Considering the evidence and information presented by the FSM (applicant), together with the evidence of record, applicable laws and regulations, it is concluded that there is no basis for granting relief in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __js____ __jtm___ __dwt___ 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. John Slone ______________________ CHAIRPERSON INDEX CASE ID AR20070006453 SUFFIX RECON DATE BOARDED 20071018 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION (DENY) REVIEW AUTHORITY ISSUES 1. 137.0000 2. 3. 4. 5. 6.