BOARD DATE: 17 November 2015 DOCKET NUMBER: AR20150002026 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, the spouse of a deceased former service member (FSM), requests, in effect, correction of the FSM's records to show a Survivor Benefit Plan (SBP) election for spouse coverage was submitted and approved. 2. The applicant states: * on 31 May 1995 her husband requested that she be his retired pay beneficiary * after several months of not receiving any correspondence, he called and was told to submit a DD Form 1882 (SBP Election Change), which he did on 11 June 1996 * per her past conversations with her husband, and to the best of her recollections since they did not receive any documentation denying the request, she believed she would be entitled to 55 percent of his retired pay upon his death * her husband was not aware of the requirement to submit an SBP election change within twelve months of marriage * her husband was not counseled on the requirement and it was his intent to take care of her in his absence as documented by his request to assign her as his beneficiary 3. The applicant provides: * her marriage certificate and the FSM's death certificate * two letters from the FSM to U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, Missouri, dated 31 May 1995 and 11 June 1996 * DD Form 1882 (SBP Election Change), dated 11 June 1996 * DD Form 108 (Application for Retired Pay Benefits), date 2 July 1996 * an extract of the FSM's DD Form 2656 (Data for Payment of Retired Personnel), dated 2 July 1996 (pages 3 and 4 of 4) CONSIDERATION OF EVIDENCE: 1. The FSM was born on 18 January 1937. 2. Following enlisted service in the New York Army National Guard (NYARNG) from 2 February 1953 to 12 July 1962, the FSM was appointed as a Reserve commissioned officer in the NYARNG on 13 July 1962. 3. The FSM was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 29 May 1973. This letter notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60. 4. The FSM completed a DD Form 1883 (SBP Election Certificate) on 28 September 1979. On this form, he indicated he was married and had dependent children. He elected option C (immediate coverage), "children only," based on the full amount of his retired pay. Option C states, "I elect to provide an immediate annuity beginning on the day after date of my death, whether before or after age 60." His first spouse, Lorraine, acknowledged his election and placed her signature on the back of the form on 5 November 1979. 5. The FSM and his first spouse, Lorraine, divorced on or about 10 July 1981. 6. The FSM completed an SBP open season election on 19 July 1983, wherein he indicated he was not married and had no dependent children. He further elected, under Section IV (Initial Enrollment), the following option, "I do not wish to make an election at this time." 7. Orders 34-22, issued by the NYARNG on 20 February 1990, honorably separated him from the ARNG and transferred him to the U.S. Army Reserve Control Group (Retired Reserve). 8. The FSM and the applicant were married on 16 April 1994. 9. The FSM's record reveals a signed letter addressed to the Commander, ARPERCEN, dated 5 June 1995, which indicates he enclosed his July 1981 divorce decree and his April 1994 marriage certificate to update his SBP. The FSM stated he wanted to change his elected SBP beneficiary to his wife, Barbara, as soon as possible. 10. The FSM was placed on the Retired List on 18 January 1997, his 60th birthday. 11. The applicant provides: a. Her New York State Certificate of Marriage Registration, which shows she and the FSM were married on 16 April 1994. b. A signed letter from the FSM to ARPERCEN, subject: SBP Election Change, with enclosure DD Form 1882, dated 11 June 1996, which shows the FSM requested a change to his elected SBP beneficiary to his current wife as of 16 April 1994. In this letter, he contends he was not aware that any change needed to be made within one year of marriage. He sent a certified letter on 5 June 1995, along with his 1979 [sic] divorce decree and his April 1994 marriage certificate to reflect this change. After several months without confirmation, he called and was instructed to submit his request on a DD Form 1882. c. A DD Form 108 sent to Commander, ARPERCEN on 2 July 1996, wherein the FSM applied for retired pay benefits. A memorandum from ARPERCEN, dated 4 November 1996, approved his application for retired pay. d. A DD Form 2656, dated 2 July 1996, wherein the FSM designated his wife, Barbara, the applicant, as his beneficiary and elected "spouse only" SBP coverage based on the full amount of his retired pay. e. The FSM's State of Florida Certification of Death that shows the FSM passed away on 2 May 2014 at the age of 77. 12. The applicant did not provide any documentation from the Defense Finance and Accounting Service (DFAS) indicating the FSM's status. In order to confirm the FSM's status, a Board analyst contacted DFAS. According to DFAS records, the FSM elected to provide "child only" SBP coverage, spouse excluded, and had been paying Reserve Component SBP (RCSBP) premiums for "child only" coverage from the time he retired until his death as required by law. 13. 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. 14. 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 15. Once a member elects either option B or C in any category of coverage, that election becomes irrevocable (emphasis added). 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. 16. Public Law 97-35, enacted 12 August 1981, established an Open Season from 1 October 1981 – 30 September 1982. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. 17. Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000. 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 one-time, lump sum enrollment premium. Extensive publicity was given in Army Echoes. 18. The National Defense Authorization Act for Fiscal Year 2005 established an Open Season for enrollment to be conducted from 1 October 2005 through 30 September 2006. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for correction of the FSM's records to show he made a spouse-only SBP election within 1 year of his marriage to the applicant was carefully considered. 2. The evidence of record shows the FSM submitted a DD Form 1883 on 28 September 1979 following receipt of his 20-Year Letter, wherein he elected "child only" RCSBP coverage in the presence of a witness. His first spouse, Lorraine, concurred with this election. 3. The FSM completed an open season election form on 19 July 1983, in which he declined SBP coverage. However, under Public Law 97-35, enacted on 12 August 1981, the Open Season was in effect from 1 October 1981 through 30 September 1982. Therefore, it appears this election was not accepted by DFAS since it occurred outside the Open Season window. 4. The FSM and the applicant married on 16 April 1994. He tried to contact ARPERCEN to change/update his RCSBP to make his wife his beneficiary. He completed a DD Form 2656 on 2 July 1996, electing spouse coverage; however, this election did not occur during an Open Season. 5. SBP elections are made by category and not by name. Since the FSM initially elected option C, "child-only" coverage at the time he received his 20-Year Letter, he did not have the option to change his election at age 60. In essence, he excluded his spouse and any future spouse from coverage. 6. The applicant contends that the FSM was not properly counseled as to the requirements of the SBP process. However, there is no evidence in the FSM's available record and the applicant has failed to provide evidence that supports this contention. 7. The FSM's only option for adding a later spouse (the applicant) would have been during an Open Season election. There were two Open Seasons, 1 March 1999 to 29 February 2000 and 1 October 2005 to 30 September 2006, in which the FSM could have submitted an application to change his beneficiary. 8. The Open Seasons were extensively publicized and information notified retirees that a lump sum buy-in premium would be required and could be costly. Further, because the FSM was then in receipt of retired pay, each monthly pay statement would have reflected his RCSBP/SBP status, beneficiaries, and any deductions. This information should reasonably have led the FSM to make inquiries. 9. There is no evidence the FSM attempted to enroll during these two Open Seasons before his death, in spite of the readily apparent fact that the applicant was not enrolled in SBP. 10. Regrettably and accordingly, the applicant is not entitled to receive the FSM's SBP benefits under the applicable laws and regulations governing entitlement to SBP benefits. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ___X__ 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. _________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. ABCMR Record of Proceedings (cont) AR20110016959 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002026 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1