BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150008171 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: 17 May 2016 DOCKET NUMBER: AR20150008171 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 signed and submitted a DD Form 2656-6 on 1 February 2011 electing spouse only SBP coverage based on the full amount of his retired pay and that the form was received by the Secretary concerned on 1 February 2011. ___________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: 17 May 2016 DOCKET NUMBER: AR20150008171 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 his military records be changed to show he submitted a DD Form 2656-6 (Survivor Benefit Plan (SBP) Election Change Certificate) to elect spouse only coverage based on the full amount of his retired pay within 1 year of his marriage. 2. The applicant states when he was attending retirement briefings in January 2007 he was asked, along with several others, at the beginning if anyone was not married. He raised his hand and at that time the instructor told him it was not necessary for him to attend the briefing on survivor benefits as it was for married personnel. There was no use in him attending because he was not married at that time. On 31 January 2011, he got married in the Philippines. His wife came to the U.S. in October 2013. When they went to the closest military facility to get her an identification card he asked what process was needed for him to get SBP for his wife. He was told everything was being taken care of and his wife would be the beneficiary in the event of his passing. He thought everything was taken care of until he looked at his pay voucher for retired pay several months later and noticed it said he was not enrolled in SBP. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 16 July 2006 * a memorandum, dated 2 October 2003, from State of Ohio, Adjutant General's Department * U.S. Army Human Resources Command (HRC) Orders P07-789328, dated 24 July 2007 * his marriage certificate and related documents * his letter, dated 19 January 2015 to the Defense Finance and Accounting Service (DFAS) * a letter, dated 25 February 2015, from DFAS 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. 1. The applicant previously served 16 years, 6 months, and 20 days in the Regular Army. On 25 January 1997, he enlisted in the Maryland Army National Guard (MDARNG). He served in the MDARNG, OHARNG, and PAARNG until his retirement. 2. He served in Bosnia from 22 August 2001 - 9 April 2002. He served in Iraq from 2 January 2004 - 19 April 2005 and from 1 December 2005 - 16 July 2006. 3. On 2 October 2003, the State of Ohio, Adjutant General's Department notified the applicant he had completed the required years of service and he would be eligible for retired pay upon application at age 60 (20-year letter). 4. There is no record of a DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP Election Certificate) showing the applicant having made an RCSBP election within 90 days of receiving his 20-year letter. 5. HRC Orders P07-789328, dated 24 July 2007, placed the applicant on the Retired List effective 11 March 2007. 6. Records from DFAS contain two DD Forms 2656 (Data for Payment of Retired Personnel), dated 30 May 2007 and 26 July 2007. On both forms the applicant indicated he was single, he elected not to participate in SBP, and that he had no eligible dependents under the plan. 7. On 31 January 2011, the applicant married his current wife in the Philippines. 8. On 19 January 2015, the applicant wrote to DFAS attempting to list his wife as the beneficiary for SBP. 9. Records from DFAS contain two DD Forms 2656-6 (Survivor Benefit Plan Election Change Certificate), dated 19 and 24 February 2015. Both forms are not completed correctly for a member who had no spouse at the time of eligibility and now desired to provide SBP for the first spouse acquired after retirement. Section II - Current Coverage shows an "X" in the "Spouse Only" block. Section III - Conditions that Trigger Eligibility to Change Coverage does not have any of the blocks checked. Based on his situation the block titled "Marriage" should be checked. However, the forms show his intent was to elect spouse only coverage based on the full amount of his retirement pay. 10. Letters, dated 25 February 2015 and 31 August 2015, from DFAS informed the applicant that since he was not married at the time of his retirement, SBP rules dictate he only had 1 year from the date of his marriage to notify DFAS if he wanted to elect SBP coverage for his new wife. Since his marriage was on 31 January 2011, he was ineligible to add spouse coverage. DFAS also informed him he could make a written request for special consideration to the board of corrections for his service. If the board of corrections for his service provided a favorable decision he would incur a debt for cost and coverage retroactive to the 1 year anniversary of his marriage. REFERENCES: 1. Public Law 95-397, the RCSBP, 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 occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity. 2. Before the law was amended as noted below, a member must have made the election within 90 days of receiving the 20-year letter or else wait until he/she applied for retired pay and elected to participate in the standard SBP. In other words, failure to elect an option resulted in the default election of option A. 3. 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. 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 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. The Defense Finance and Accounting Service interprets the phrasing of the first sentence of this section to read, "…is not married or has no dependent child." DISCUSSION: 1. There is no evidence the applicant was married on 2 October 2008, when he received his 20-year letter. There is no record of him submitting a DD Form 2656-5 within 90 days of receiving his 20-year letter. Because he had no eligible dependents this would have resulted in default election to Option A, elect to decline enrollment and choose at age 60 whether to start SBP participation. 2. The applicant was not married when he was placed on the Retired List and became entitled to retired pay on 11 March 2007. He was married to his current wife on 31 January 2011. He had 1 year from that date to enroll in the SBP and elect spouse only coverage based on the full amount of his retired pay. 3. The applicant contends he was informed he did not need instruction on SBP benefits at the time of his retirement because he was single. The DD Forms 2656 he completed in 2007 indicate he was single with no eligible dependents and that he declined SBP. This lack of instruction contributed to the incorrectly completed DD Forms 2656-6 in February 2015 and the fact that he had not submitted the forms within 1 year of his marriage. 4. Although the DD Forms 2656-6 were completed incorrectly and submitted more than 1 year from his date of marriage, it is clear his intent was to elect spouse only coverage based on the full amount of his retired pay. 5. He contends his wife arrived in the U.S. in October 2013 and when they applied for his wife's identification card, he also indicated at that time his desire to provide SBP benefits for his wife. He was told that everything had been taken care of. There is no evidence the applicant was informed of the 1-year rule for enrolling his wife until the letter from DFAS, dated 25 February 2015. 6. It would be equitable to correct his records to show he completed a DD Form 2656-6 on 1 February 2011 electing spouse only SBP coverage based on the full amount of his retired pay. The record should be changed to show the DD form 2656-6 was submitted to and received by the Secretary concerned on 1 February 2011. 7. On 25 February 2015 and 31 August 2015, DFAS informed the applicant that if the board of corrections for his service provided a favorable decision he would incur a debt for cost and coverage retroactive to the 1 year anniversary of his marriage. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008171 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008171 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2