ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 January 2021 DOCKET NUMBER: AR20200002922 APPLICANT REQUESTS: * to change the Former Servicemember's (FSM) beneficiary for his Survivors Benefit Plan (SBP) to his widow * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Communication Result Report * two SBP Election Change Certificates * Certificate of Death FSM's first wife * Certificate of Marriage FSM and second wife * Verification for Survivor Annuity * Claim for Unpaid Compensation of Deceased Member * Withholding Certificate for Pension or Annuity Payments * Direct Deposit Form * Certificate of Death FSM FACTS: 1. The applicant states: a. He respectfully requests for the date of 23 October 2017 be the effective date utilized by the Armed Services Center, US Army Human Resources Command (HRC) and Defense Finance and Accounting Service (DFAS) as it pertains to the updates on two DD Forms 2656-6 (SBP Election Change Certificate) as designated by the FSM. The 23 October 2017 date is consistent with the date stamp on the fax submission to DFAS of the updated forms sent by the Nebraska Army National Guard (ARNG) retirement noncommissioned officer (NCO). b. The Army Service Center, HRC in January 2020 rejected the SBP claims for the FSM's surviving spouse because the two DD Forms 2656-6 are dated 18 July 2017, which was the day before their marriage. c. The FSM met with the retirement NCO on 18 July 2017 and used the appointment to fill out the documents prior to his marriage. The FSM did not live in the area and had the understanding the documents would be dated and sent to DFAS by the NCO once the FSM received his recorded marriage certificate. d. The NCO entered the wrong dates on the two DD Forms 2656-6 and did not correct them prior to submitting them to DFAS on 23 October 2017. Further the NCO, DFAS and HRC failed to notify the FSM of the discrepancy prior to his death. The inaccurate document dating was a clerical error by the NCO and should be corrected as it is preventing the FSM's surviving spouse from receiving SBP benefits. 2. The FSM's records contain the following documents for the Board's consideration: a. A memorandum from Military Department of Nebraska, Nebraska Army National Guard, dated 21 June 2004, subject Notification of Eligibility for Retired Pay at Age 60, which states: * he was entitled to participate in the Reserve Components SBP * he would be automatically enrolled for coverage for spouse and children unless different coverage was selected within 90 days of receipt of the letter * notarized spousal concurrence was required in order to decline full and immediate coverage * failure to meet the requirement would result in the retention of full coverage for his spouse and children b. An NGB Form 22 (Report of Separation and Record of Service), which shows the FSM was transferred to the retired ready reserve on 31 May 2004 and had 20 years of service. 3. The FSM's service records are void of any documentation regarding SBP elections. 4. The applicant provides the following documents for the Board's consideration: a. A communication result report, which shows a fax was sent to DFAS on 23 October 2017, from an NCO with the Nebraska ARNG. b. A DD Form 2656-6, dated 18 July 2017, which shows: * the FSM's current coverage was for spouse only * he was changing the coverage due to the death of his spouse * he was requesting to suspend his coverage c. A second DD Form 2656-6, dated 18 July 2017, which shows: * the FSM's current coverage was no coverage * he was requesting to change the coverage due to remarriage * he was requesting to resume the existing level of coverage for his new spouse * he was requesting coverage for his spouse only based on his full retired pay d. A State of Certificate of Death for the FSM's first spouse, which shows she died on 18 May 2013. * the applicant's current spouse's name in designation of beneficiaries for unpaid retired pay * the applicant elected coverage for his former spouse based on his full gross pay * the applicant and his current wife signed the form and it was notarized e. A State of License and Certificate of Marriage, showing the FSM was married on 27 September 2017. f. The following documents in support of the FSM's spouse's request for SBP: * DD Form 2656-7 (Verification for Survivor Annuity) * Standard Form 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services) * a Withholding Certificate for Pension or Annuity Payments * a Direct Deposit form g. A state of Certificate of Death, which shows the FSM died on 28 November 2019 his date of birth was XXXXXXXX. He was 57 years of age at the time of his death. h. A letter from HRC to the FSM's spouse, dated 1 February 2020 which states the FSM had one year from the date of marriage to make an election change to his SBP. If an election was not made within 1 year, he would not be entitled to SBP coverage until he applied for retired page at age 60. The FSM submitted the DD Form 2656-6 two months prior to his marriage which makes the widow ineligible for the annuity. 5. The analyst of record contacted DFAS. The representative from DFAS stated they did not have any SBP documentation in their system. 6. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 7. See applicable references below. ? BOARD DISCUSSION: 1. After reviewing the application and all supporting evidence, the Board found sufficient evidence to grant partial relief. 2. The Board found sufficient evidence that the FSM intended to add SBP coverage for his current spouse within one year of their marriage. There is evidence the FSM had only suspended spousal coverage due to the death of his former spouse. Notwithstanding any discrepancy in dates on his SBP election forms, the applicant had a qualifying spouse and it is evident from his SBP election form sent in October 2017, shortly after his remarriage, that he intended to elect spousal coverage for his new spouse. 3. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 2. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant elected his SBP election to cover his spouse within one year of 27 September 2017 (the date of his remarriage) and the request was received and processed by the appropriate office in a timely manner. 3. The Board recommends denial of a personal appearance. 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. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 2. 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. If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive). 3. Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to first anniversary of remarriage). Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002922 6