BOARD DATE: 24 August 2017 DOCKET NUMBER: AR20160001896 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ ____x____ _____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 24 August 2017 DOCKET NUMBER: AR20160001896 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________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: 24 August 2017 DOCKET NUMBER: AR20160001896 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 military service records to show he made a timely election to participate in the Survivor Benefit Plan (SBP). 2. The applicant states at the time he made his SBP election he was not mentally stable; therefore, he was not able to make sound decisions. He adds that he has suffered from mental illness since 1999 until the present. He also states he was misinformed about the SBP. 3. The applicant provides a self-authored statement (summarized above) and copies of his: * Department of Veterans Affairs (VA) medical records * Defense Finance and Accounting Service (DFAS) correspondence 4. On 28 October 2016, the Director, Case Management Division, Army Review Boards Agency (ARBA), Arlington, VA, notified the applicant that in order for the Army Board for Correction of Military Records (ABCMR) to consider his application, he must provide a copy of his marriage certificate, SBP Election Form, and his spouse's concurrence/nonconcurrence with his SBP election. The applicant provided the following documents: * marriage certificate, dated 23 December 1980 * DD Form 2656 (Data for Payment of Retired Personnel), dated 11 November 2016 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 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 enlisted in the Regular Army on 17 September 1980. Through a series of reenlistments, he continued to serve on active duty and attained the rank of sergeant first class/pay grade E-7. 3. A DA Form 2648 (Preseparation Counseling Checklist) shows the applicant requested and received pre-separation services and benefits counseling on 18 October 1999. 4. A DA Form 2166-7 (Noncommissioned Officer (NCO)) Evaluation Report) covering the period October 1999 through July 2000 shows the rater noted the applicant was a "superior performer" and assessed his overall performance as "Among the Best. It also shows the senior rater assessed his overall performance as "Successful (1)" and his overall potential for promotion and/or service in positions of greater responsibility as "Superior (1)." Comments by the rater lauded his sound judgement and ability to maintain and track training requirements for over 100 service members. His senior rater noted what an outstanding Junior Reserve Officers' Training Corps instructor the applicant would be upon retirement from active duty. 5. The applicant's election pertaining to participation in the SBP is not in his available military personnel records. 6. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably retired from active duty based on sufficient service for retirement on 30 September 2000. He had completed 20 years, 0 months, and 14 days of net/total active service this period. 7. In support of his application the applicant provides the following documents. a. State of Alabama Marriage Certificate that shows the applicant and Pamela Joyce S___ married on 23 December 1980. b. A DD Form 2656, completed by the applicant on 11 November 2016, that shows in: * item 22 (Spouse), he listed the name of his spouse (Pamela S____) with a date of marriage of 30 December 1980 * item 25 (Dependent Children), he listed the names of his daughters * item 26 (Beneficiary Categories): "I Elect Coverage for Spouse and Child(ren)" * item 27 (Level of Coverage): "I Elect Coverage Based on Full Gross Pay" * item 30 (Member), he signed the form on 11 November 2016 * item 31 (Witness), is blank (i.e., no entries or signature) * item 32 (Spouse. I hereby concur with the SBP election made by my spouse. I have received information that explains the options available and the effect of those options. I know that retired pay stops on the day the retiree dies. I have signed this statement of my free will.) – his spouse placed her signature on the form on 10 November 2016 * item 33 (Notary Witness), a notary official authenticated the applicant's spouse's identity and witnessed her sign the form c. VA medical records that show the applicant has been treated by the Central Alabama Veterans Health Care System since the 1990s and he has been prescribed a Selective Serotonin Reuptake Inhibitor (one of the commonly prescribed drugs for treating depression). d. DFAS letters, dated 29 November 2007, 2 April 2008, and 6 January 2009, that notified the applicant DFAS had reviewed his Combat Related Special Compensation, Concurrent Retirement and Disability Pay account. These letters show the most recent review determined his account was current at the time and his entitlements had been correctly computed (through December 2008). 8. In the processing of this case, an advisory opinion was obtained from the ARBA medical staff, dated 19 December 2016. The ARBA medical advisor reviewed the applicant's military personnel records and the documentation provided by the applicant. The medical advisor wrote: "Review of the VA medical documentation indicates the applicant has been diagnosed with Major Depressive Disorder by the VA. A letter from his treating healthcare provider states he has been in treatment 'since the 1990's.' The applicant takes medication for depression. According to his healthcare provider, the applicant is severely socially and industrially impaired and has problems with concentration and short term memory. No other medical documentation is provided." 9. On 28 December 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. 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. An SBP election is irrevocable. 2. Section 1448, Title 10, U.S. Code, provides that if a person makes an election not to participate in the SBP, the person's spouse shall be notified of that election. Spousal concurrence is needed only when a married person elects to provide an annuity for their spouse at less than the maximum level or to provide an annuity for a dependent child but not for their spouse. 3. Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. The retiree must have paid 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. DISCUSSION: 1. The applicant contends, in effect, that his military service records should be corrected to show he elected to participate in the SBP with spouse and child (full) coverage because he was misinformed about the SBP and he was not able to make sound decisions during his retirement transition processing. 2. The sincerity of the applicant's comments is not in dispute. However, the medical evidence he provides deal mainly with issues several years after he left active duty. 3. Records show the applicant requested and received pre-separation services and benefits counseling prior to retiring from active duty on 30 September 2000. Records also show the applicant performed his duties as a senior NCO in an outstanding manner during the period of service under review. 4. The evidence of record indicates prior to retiring from active duty, the applicant elected not to participate in the SBP. 5. The DD Form 2656 the applicant submits with his application to the Board, dated 11 November 2016, is noted. However, this SBP Election Form for spouse and children coverage was not timely submitted (i.e., prior to, or at the time of, the applicant's retirement from active duty). 6. The applicant is advised that, on occasion, the U.S. Congress enacts into law an SBP Open Season. History shows these laws have required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. Also, they required the retiree to pay monthly premiums starting on the date of enrollment and a buy-in premium covering all costs that would have been paid for the election if it had been made at the first opportunity to do so. The applicant is encouraged to monitor military media and/or websites in the event an SBP Open Season is enacted into law in the future. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001896 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001896 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2