IN THE CASE OF: BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150010943 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 IN THE CASE OF: BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150010943 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. IN THE CASE OF: BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150010943 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: The applicant, the widow of a deceased former service member (FSM), defers her request to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, that the applicant be entitled to Survivor Benefit Plan (SBP) benefits based on the death of her husband, an FSM. 2. Counsel states the FSM's records show he served honorably on active duty and was in good standing with the Army National Guard (ARNG) until his retirement. The FSM paid into the SBP program and payments should be going to his spouse. The applicant has attempted for numerous years, without success, to get SBP benefits. In 2012, she sought the assistance of the Fayette County Veterans Service Office (CVSO); however, despite multiple attempts, the CVSO has been unable to help her with this issue. 3. Counsel provides: * the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 4 February 1965 * the FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), for the period ending 3 October 1996 * the FSM's Notification of Eligibility for Retired Pay at Age 60 with 15 Years of Service (15 Year Letter), dated 6 October 1996 * the FSM's DD Form 1883 (SBP Election Certificate), dated 27 November 1996 * the FSM's DD Form 2656 (Data for Payment of Retired Personnel), dated 2 October 2002 * the FSM's DD Form 108 (Application for Retired Pay Benefits), dated 23 October 2002 with NGB Form 23A (ARNG Current Annual Statement), prepared on 4 November 1996 * the FSM's Certificate of Death, issued by the Indiana State Department of Health on 19 May 2003 * a letter from the Chief, Transition and Separations Branch, U.S. Army Reserve Personnel Command (AR-PERSCOM), dated 21 June 2004 * Orders P06-485246, issued by AR-PERSCOM on 21 June 2004 * Orders P06-485246R, issued by AR-PERSCOM on 9 June 2005 * a self-authored letter from the applicant to the Defense Finance and Accounting Service (DFAS) Retirement and Annuity Pay Branch, dated 20 May 2014 with attachment * a fax cover sheet from the CVSO to DFAS on behalf of the applicant, dated 28 April 2015 with attachments * a letter to the applicant from DFAS, dated 26 May 2015 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. 2. The FSM was born on 25 October 1944. 3. The FSM served on active duty from 5 February 1963 through 4 February 1965. Following his release from active duty, he was transferred to the U.S. Army Reserve (USAR) on 5 February 1965. 4. The applicant and the FSM were married on 24 June 1965. 5. Following service in the USAR and U.S. Air Force Reserve, the FSM began a period of ARNG service on 13 November 1982. 6. The FSM was honorably discharged from the ARNG and transferred to the USAR Control Group (Retired Reserve) on 3 October 1996. His NGB Form 22 shows he completed 24 years and 15 days of total service for pay. 7. The Indiana ARNG (INARNG) issued the FSM a Notification of Eligibility for Retired Pay at Age 60 with 15 Years of Service (15 Year Letter) on 6 October 1996, due to his medical disqualification for further service. 8. The FSM completed a DD Form 1883 on 27 November 1996, wherein he placed a checkmark in the corresponding block for Option A (Defer). This indicated he declined enrollment in the Reserve Component SBP (RCSBP) and deferred his election for coverage under the SBP until age 60. 9. The FSM completed a DD Form 2656 on 2 October 2002, as the basis for receiving retired pay upon his transfer to the Retired List at age 60. This form shows he elected SBP coverage for his spouse and children, based on his full gross pay. (It is assumed the election of "spouse and children" is an error and should only be "spouse" since the FSM indicated "None" in item 25 (Dependent Children) on this form). 10. The FSM completed a DD Form 108 on 23 October 2002, wherein he applied for retired pay benefits. 11. The FSM died on 20 April 2003 at the age of 58. His death certificate lists the applicant's name as the informant and surviving spouse. 12. The Chief, Transition and Separations Branch, AR-PERSCOM, informed the FSM by letter on 21 June 2004, that his application for retired pay under Title 10, U.S. Code, section 12731 had been approved. 13. Orders P06-485246, issued by AR-PERSCOM on 21 June 2004, placed the FSM on the AUS Retired List in the rank of sergeant, effective 25 October 2004, his 60th birthday. However, those orders were revoked on 9 June 2005 by Orders P06-485246R, due to the FSM's death. 14. The applicant received a letter from DFAS on 26 May 2015, denying her entitlement to SBP. 15. Counsel provides: a. A letter the applicant sent to DFAS, Retirement and Annuity Pay Branch on 20 May 2014, wherein she stated her belief that her husband had enrolled in the SBP program, with her request that DFAS review his records and provide the necessary action to help her. She included, as an enclosure, a copy of the FSM's ARNG retirement point history statement. b. A DD Form 2656-7 (Verification For Survivor Annuity), dated 28 April 2015, which the applicant completed verifying her eligibility for an annuity under SBP. c. A DFAS-CL Form 7220 (Retiree Account Statement (RAS)) with an effective date of 27 October 2004, (the month the FSM would have been age 60), which shows SBP coverage type of "spouse only" and a premium cost of $7.98 to be deducted under the new pay due as of 1 December 2004. As an enclosure, a one-page summary also lists the SBP cost. REFERENCES: 1 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. 2. Public Law 95-397, enacted 30 September 1978, established the RCSBP for RC members. 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 DISCUSSION: 1. The applicant requests to receive SBP annuity payments based on her husband's death. 2. The applicant contends the FSM paid into the SBP program and she should be entitled to benefits as a result of his death. However, the evidence of record shows the FSM elected Option A. By doing so, he elected to decline enrollment and defer his SBP election until he reached age 60. 3. The applicant provides an RAS for the month in which the FSM would have reached his 60th birthday. This statement shows a partial payment for retired pay of $63.80 (25 October - 31 October 2004) and an SBP payment to be deducted for the new pay due period of 1 December 2004. A member of the Board's staff contacted DFAS and was informed that once an account is built, the DFAS system automatically generates an RAS on the date of the FSM's 60th birthday. DFAS was notified of his death right after the payment was initiated. The retired pay account was then suspended and the money was retrieved back from the bank. There were no other payments afterwards and there were no SBP premiums ever deducted. 4. Regrettably, the FSM died prior to age 60; as such, the FSM was not authorized non-regular retirement pay. Since he elected to decline enrollment and defer his SBP election until age 60, there was no basis for paying SBP benefits at the time of his death. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010943 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010943 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2