IN THE CASE OF: BOARD DATE: 23 December 2020 DOCKET NUMBER: AR20200000308 APPLICANT REQUESTS: as the widow of the Former Service Member (FSM), to be added as the FSM’s Reserve Component Survivor Benefit Plan (RCSBP) annuitant. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter, dated 14 January 2020 * Memorandum to FSM (Notification of Eligibility for Retired Pay at Age 60), dated 27 August 1999 * 1st Endorsement Memorandum to FSM Subject: (Notification of Eligibility for Retired Pay at Age 60), dated 27 August 1999 * Marriage License, dated 14 November 1999 * Discharge Orders #154-051, dated 2 June 2016 * DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate, dated 15 July 2016 * NGB Form 22 (National Guard Report of Separation and Record of Service), dated 7 August 2016 * NGB 23A1 (Army National Guard Current Annual Statement), dated 1 September 2016 * Death Certificate, dated 8 May 2019 * DD Form 2656-7 (Verification for Survivor Annuity), dated 15 July 2019 * Gray Area Retirement Branch letter to applicant, dated 15 October 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant state to the best of her knowledge, her husband was not counseled to make an election at the time he received his 20-year letter. She states they were not married at the time and she updated all records, as his beneficiary after their marriage. The RCSBP is dated 15 July 2016, naming herself as beneficiary. In October of 2019, the applicant received a letter from US Army Human Resources Command (HRC) located in Fort Knox, Kentucky. The letter advised her of the denial of survivor benefits. She called the number on the letter and she was told to fill out the appeal form and mail everything back for a decision. Without a response, she reached out to HRC and learned she was given some information that was not accurate and her initial contact no longer worked there. As a grieving spouse, she felt she might have read the letter wrong. The FSM retired from the Wyoming Army National Guard after 37 years of service in August of 2016 and signed DD-Form 2656-5 Reserve Component Survivor Benefit Plan Election Certificate, entitling her to retirement benefits upon death. As this is the most current record, it should be upheld. At the time he received the 20- year letter, they were not married, so she is not sure what he did or did not sign. She says her name is on every paper required by the Army National Guard since their marriage in October 1999. Further, she feels she is entitled to this benefit provided by the Army and payable from the date of his death, 1 May 2019. The process should not cause more grief for the family members. She enclosed copies of the file that she originally sent to Fort Knox, to include an updated Death Certificate, the denial from Fort Knox, and the appeal signed in October. She wants to thank ARBA for their consideration. 3. A review of the FSM’s military records reflects the following on: a. 6 July 1979, the FSM enlisted in the Army National Guard for a period of 6 years in the rank Private (PVT)/E-1 and served in various positions. b. 27 August 1999: (1) a First Endorsement was provided to the FSM with three attachments, a DD Form 1883 (Survivor Benefit Plan/SBP election), NGB Form 23A (Army National Guard Current Annual Statement) and Notification of Eligibility for Retired Pay (NOE). The DD Form 1883 (Survivor Benefit Plan/SBP election) wherein the FSM was given the opportunity to complete the form. The information with the form included an SBP Fact Sheet providing more options. He was given 90 days from the receipt of the 20 Year Letter to make a decision regarding his SBP election. Further, it states, “No Extensions Are Granted.” If no option is made within 90 days, Army Reserve Personnel Command will automatically place him under “Option A.” (2) A NOE for Retired Pay at Age 60 stating the FSM would be eligible for pay. Further, it states his retired pay may not be denied or revoked on the basis of any error or miscalculation. c. 2 June 2016 (Orders 154-051), published by State of Wyoming Adjutant General’s Office discharged him from the Army National and assigned him to the Retired Reserve effective 7 August 2016. Additional instructions provide: * Over 20 years credible service for retirement completed * RCSBP is in process * Apply for retirement pay at age 59 d. 15 July 2016, a DA Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate) was signed by the FSM. It reflects he was married on 22 October 1999. The coverage requested was Option C (Immediate Annuity) to begin on the date of death whether before or after age 60 for spouse only. Further, the level of coverage is based on full-retired pay. e. 7 August 2016, NGB Form 22 (National Guard Report of Separation and Record of Service), reflects he was transferred to the Retired Reserve on 7 August 2016 with 37 years, 1 month and 6 days. f. 1 September 2016, (RPAS/NGB Form 23A - Army National Guard Current Annual Statement) gave the FSM an opportunity to review his retirement points. A review of the points showed he had 3,455 points for retired pay and 37 years, 1 month and 6 days creditable for retired pay. His retirement pay eligibility date was 4 June 2020. 4. Email correspondence between Army SBP Manager and the analyst of record provides the FSM did not complete the initial RCSBP election form nor was a change form submitted. The form would have had to be completed after marriage. The only other way a service member may add a spouse after getting married is when applying for non-regular retirement. The NOE states how service members have to make an election within 90 days and to contact the unit readiness NCO. According to the NOE, there was an SBP fact sheet attached. If service members were counseled properly at the time of the NOE (27 Aug 99), it would have been told to complete the DD Form 1883 with no beneficiary then to complete a change form to reflect the marriage (19 October 1999) within one year of the marriage (19 October 2000); otherwise, it would default to Option A and a service member could make an SBP election at non-regular retirement. 5. The applicant provides documents below not previously stated under service records review: a. Marriage License shows the applicant and FSM were married on 22 October 1999. b. A Death Certificate was provided reflecting date of death as 1 May 2019. c. A DD Form 2656-7 (Verification for Survivor Annuity), reflects claimant as widow. She is requesting SBP as spouse. Further, she certifies she was legally married to the FSM and had been married since 22 October 1999. There are no children to consider and she is not receiving any other annuity from DFAS based on the military record of the deceased military retiree. d. A Gray Area Retirement Branch letter was mailed to the applicant wherein they stated she was denied benefits. By law, the FSM had 90 calendar days from the date he received his letter to submit a Survivor Benefit Election Certificate (DD Form 1883). If an election were not made within the required 90 calendar days, he would not be entitled to Survivor Benefit coverage until he applied for retired pay at age 60. She was made aware of the opportunity to apply to the Army Board for Correction of Military Records to review her case. The Board was established for the express purpose of considering the existence of error or injustice, and to make appropriate recommendations for corrective action. She was provided with a DD Form 149 (Application for Corrections of Military Record) for reconsideration and a copy of this letter. 6. 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 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. 7. See regulatory guidance under REFERENCES. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. One potential outcome discussed was to deny the requested relief based upon the FSM receiving his 20-year letter in 1999, and electing SBP coverage until 2016, a date well after the required 90-day timeframe. However, the Board found by the evidence that the FSM was unmarried at NOE in August 1999, so RCSBP election was automatically deferred until age 60, but FSM did not survive to age 60 to make that election. FSM did submit DD Form 2656-5 in 2016 specifying his spouse as the sole beneficiary when preparing to retire from the National Guard, which indicates his intent to enroll and have his spouse as the beneficiary. In the interest of justice supported by FSM’s intent to participate, relief is warranted. As a result, the record should reflect the FSM submitted DD Form 2656-5 electing full and immediate coverage within one year of FSM’s marriage to applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XXX : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 the applicant elected full and immediate coverage on 1 October 2000 (within one year of the marriage to the applicant) and the request was received and processed by the appropriate office in a timely manner. The Board also recommended that any and all premiums for such coverage should be paid by the applicant prior to SBP payments being distributed. 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. REFERENCES: 1. 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). d. 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. e. 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. If the service member failed to make an election, it defaulted to Option A. 2. 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. 3. Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers. It explains that retired pay is pay granted soldiers and former Reserve components soldiers who have completed 20 or more years of qualifying service and have attained age 60. Orders will be issued announcing the effective date eligible persons are entitled to retired pay. Chapter 3 describes the RCSBP. It clearly states that members who receive their 20- year letter have 90 days to elect to participate in the RCSBP and return the DD Form 1883. Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60. 4. Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and has no dependent child upon becoming eligible to participate in the Survivor Benefit Plan (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 1 year after the date on which that person marries or acquires that dependent child. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000308 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1