BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150014573 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 January 2017 DOCKET NUMBER: AR20150014573 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: a. showing the applicant submitted and the Defense Finance and Accounting Service received the required version of her Survivor Benefits Plan (SBP) election form showing she, with the consent and concurrence of her spouse, declined SBP coverage prior to turning age 60, and b. refunding all SBP premiums withheld from her retired pay. _____________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 January 2017 DOCKET NUMBER: AR20150014573 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 correction of her records to show she properly declined to participate in the Survivor Benefit Plan (SBP) and that the monies withheld from her retired pay be refunded. 2. The applicant states she was given an obsolete SBP form during her retirement processing. She turned age 60 in February 2014 and the following month was advised that her retirement packet had not been processed because of the incorrect version of the SBP form in her records. She completed the current version with both herself and her spouse declining SBP coverage. The Defense Finance and Accounting Service (DFAS) rejected the form because she was now over age 60. She requests that the withholding of the SBP payments be halted and the monies already collected be returned to her. 3. The applicant provides through her State Headquarters: * Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) dated 5 April 2000 * DD Form 1883(Survivor Benefits Plan Election Certificate) dated 31 May 2000 * Spousal Concurrent Statement dated 31 May 2000 * Orders 455-023 dated 2 November 2000 * Army National Guard (ARNG) Retirement Points History Statement dated 30 January 2013 * DD Form 2656 (Data For Payment of Retired Personnel) dated 21 August 2013 * DD Form 180 (Application for Retired Pay Benefits) dated 21 August 2013 * DD Form 2656, dated 14 February 2014 * DFAS Retiree Account Statement dated 25 February, 17 April, and 24 September 2014 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 applicant's Integrated Personnel Electronic Records Management System (iPERMS) file only contains a copy of her retirement orders placing her on the Army of the United States Retired List. 3. The applicant provides her ARNG Retirement Points History Statement showing she served in the ARNG from 1 April 1980 through 30 September 2000. 4. The applicant received her 20-Year Letter on 5 April 2000. 5. Upon receipt of her 20-Year Letter, the applicant submitted A DD Form 1883 (version 1 December 1976), dated 31 May 2000, showing both she and her spouse declined SBP with the knowledge she would remain eligible to make an SBP election at age 60. 6. On 2 November 2000 the State of Idaho Orders 455-023 honorably discharged the applicant from the National Guard and assigned her to the Retired Reserve. 7. On 21 August 2013 the applicant submitted an application for retired pay benefits with her DD Form 2656 (version May 1998) showing she elected to not participate in the SBP. 8. On 14 February 2014 the applicant resubmitted a DD Form 2656 (version April 2009) showing she declined SBP with her spouse’s concurrence. This form was notarized and stamped by an appropriate official. 9. Her 25 February, 17 April, and 24 September 2014 Retiree Account Statements show a withholding cost for spouse-only SBP coverage. 10. On 10 August 2016, the Director, Case Management Division, Army Review Boards Agency, requested the applicant provide copies of any documentation related to the applicant's SBP election. The applicant appears to have referred the letter to Idaho Army National Guard (IDARNG), G1. 11. In a 26 August 2016 Memorandum to the Board, Colonel C____ L___, IDARNG, G1, provided evidence to support the applicant’s application. In pertinent part, he states the applicant contacted DFAS and was told to complete the April 2009 version of DD Form 2656 as the one she completed was obsolete. (The 2009 version, by law, requires the spouse’s concurrence and both the retiree and the spouse’s signature must be notarized.) REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, 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. The election made by the member was irrevocable. 2. Public Law 95-397, effective 1 October 1978, extended eligibility for coverage under the Survivor Benefit Plan to members and former members of the Reserve Components who had 20 or more years of qualifying service, but had not reached age 60, the age at which one would be eligible for retired pay. 3. Later versions of the law stated that in those cases where the member elected not to participate in the SBP, to participate at less than the maximum coverage, or to exclude the spouse by designating children only as beneficiaries, it was required that the spouse was to be made aware of the member's decision and of the implications of that decision as it affected the spouse's future welfare. DISCUSSION: 1. The applicant, with the concurrence of her spouse, declined SBP coverage at the time of her transfer to the Retired Reserve in 2000, as well as at the time she requested to receive retired pay in 2014. 2. DFAS declined to honor her election first because the form she originally used was obsolete and then because the current version was not received prior to her turning age 60. 3. Both versions of the election contain the same information and spousal consent to decline SBP coverage. Neither form states that an older version was not authorized. 4. It appears DFAS had the original form (dated 21 August 2013) on record prior to the applicant's request to receive retired pay at age 60 (February 2014). If it was not the correct version (April 2009), prior to denying her non-coverage request they could have notified the applicant and obtained the correct or most current form in compliance with policy. 5. For DFAS to maintain that the applicant had not properly declined SBP based on the use of an obsolete form when it contained the same information and spousal concurrence as the subsequent form appears to have created an injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014573 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014573 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2