BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160001860 BOARD VOTE: ____x____ ____x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160001860 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 he made an election to add his spouse to his existing Reserve Component Survivor Benefit Plan (RCSBP) within one year of his marriage (or no later than 7 June 2000) * showing his request was received and processed in a timely manner by the appropriate DFAS office (or no later than 7 June 2000) * collecting any premiums due as a result of this correction ______________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. BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160001860 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, in effect, correction of his records to show he elected to provide a Survivor Benefit Plan (SBP) annuity to his current spouse and children. 2. The applicant states, in effect: a. He was divorced when he received his Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter) in 1998. He completed and filed a DD Form 1883 (SBP Election Certificate), wherein he elected children only coverage under the Reserve Component Survivor Benefit Plan (RCSBP). b. He married his current wife on 8 June 1999 and went to the Arizona Army National Guard (AZARNG) personnel office to add her to the Defense Enrollment Eligibility Reporting System (DEERS). He asked if there was anything else he needed to do, and the response was that everything was done and there was no mention of updating the SBP. c. He had another child in May 2000. On or about June 2000, he added the new child to DEERS, and again used the AZARNG personnel office who, once again, did not mention updating the SBP. This all happened again when he had another child in April 2010. d. In December 2014, as a part of his request for retired pay, he filled out a DD Form 2656 (Data for Payment of Retired Personnel), wherein he elected spouse-only coverage under the SBP. At that time, he didn't remember having even done an election in 1999. When he received his summary of retired pay from the Defense Finance and Accounting Service (DFAS), he was informed his RCSBP election from 1998 was not updated to reflect that he was now married. e. He understands changes to SBP need to be made within one year of the qualifying event. However, as a gray area retiree, he was dependent on the personnel center to guide him on items that needed updating when there were qualifying events. In each case when he updated his DEERS account, he asked if there was anything else he needed to update for his new family members and in each case, he was told everything was complete. Since he was not drawing pay at the time, he did not have an earnings statement to trigger him to update the RCSBP; he was fully dependent on information from the personnel center. f. Neither the Twenty-Year Letter nor the DD Form 1883 stated the RCSBP election needed updating on qualifying events or addressed what a qualifying event was. Due to the fact the AZARNG personnel center did not provide him guidance or information on updating his RCSBP election, he requests his records be updated to match the election he made of spouse only when he requested retired pay on the DD Form 2656. 3. The applicant provides copies of his: * Twenty-Year Letter, dated 5 August 1998 * Orders 246-19, issued by 63rd Regional Support Command, U.S. Army Reserve (USAR) on 3 September 1998 * DD Form 1883, dated 1 October 1998 * State of Arizona, County of Maricopa Marriage License, dated 8 June 1999 * Orders C-06-016857, issued by the USAR Personnel Command (ARPERSCOM) on 19 June 2000 * DD Form 2656, dated 20 December 2014 * Orders C10-599086, issued by U.S. Army Human Resources Command (HRC) on 5 October 2015 * Summary of Retired Pay Account, dated 26 October 2015 * AHRC Form 249-E (Chronological Statement of Retirement Points), dated 3 November 2015 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was born on in October 1955 and reached 60 years of age in October 2015. 3. While serving in the USAR, the applicant received his Twenty-Year Letter on 5 August 1998. 4. Within 90 days of receiving his Twenty-Year Letter, on 1 October 1998, the applicant completed and submitted a DD Form 1883. In section II (Marital, Dependency, and Election Status) he indicated he was not married, he had children, and he selected "children only" coverage under Option C (immediate coverage). 5. The applicant married his current spouse on 8 June 1999. 6. The applicant's record shows he filled out a DD Form 2656 on 20 December 2014, in order to initiate retired pay upon reaching age 60. In Section IX (SBP Election), the applicant elected "spouse only" coverage, indicated he did have dependent children, and elected coverage based on full gross pay. A witness authenticated this form on 21 December 2014. 7. Orders C10-599086, issued by HRC on 5 October 2015, show the applicant was placed on the Retired List on 26 October 2015, in the rank/grade of sergeant first class (SFC)/E-7. 8. Defense Finance and Accounting Service (DFAS) records show the applicant has "children only" SBP coverage. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances. Elections are made by category, not be name. Since its creation, it has been subjected to a number of substantial legislative changes. 2. Public Law 95-397, enacted 30 September 1978, established the RCSBP. The RCSBP provided a way for RC members, who qualified for non-regular 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 3. Once a member elects either option B or C in any category of coverage, that election becomes 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; the options automatically roll into SBP coverage. Once 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. 4. Title 10, U.S. Code, section 1448(5)(a) (Participation by Person Marrying after Retirement, etc.) provides that a person who is not married and who has no dependent child upon becoming eligible to participate in the Plan, but who later marries or acquires a dependent child, may elect to participate in the Plan. 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. 5. DEERS is a computerized database of military sponsors, families and others worldwide who are entitled under the law to benefits such as medical care, post exchange and commissary privileges to name a few. Informing sponsors about SBP updates is not a responsibility of officials with DEERS registration duties. DISCUSSION: 1. The applicant requests correction of his record to show he elected to provide an SBP annuity to his current spouse. 2. The evidence shows the applicant was issued his Twenty-Year Letter on 5 August 1998 and he elected "children only" RCSBP coverage on 1 October 1998. 3. The applicant married on 8 June 1999. There is no evidence he elected to add spouse coverage to his previous "children only" coverage within one year of his date of marriage. His one year window to add spouse coverage to his existing children only coverage ended on 7 June 2000. 4. The applicant's record shows he attempted to change his RCSBP election to "spouse only" SBP coverage at the time of his application for retired pay on 20 October 2014. However, he was not entitled to make a new election at that time. His children were properly elected beneficiaries by virtue of his 1 October 1998 RCSBP election. His children would have received an annuity had he died. 5. The applicant contends the AZARNG personnel office did not inform him that he needed to update his SBP election within one year after he married. However, he provides no independent evidence to support his contentions nor is it clear he made specific inquiries about SBP to a Retirement Services Officer as it related to his new spouse. Nothing in the law required him to add her, and such a choice is entirely his option. 6. Notwithstanding the above, the Board may recommend, as a matter of equity, correction of his record to show he elected spouse RCSBP coverage upon the date of his marriage on 8 June 1999. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013328 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001860 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2