BOARD DATE: 9 March 2017 DOCKET NUMBER: AR20150016604 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: 9 March 2017 DOCKET NUMBER: AR20150016604 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 his request for a Survivor Benefit Plan (SBP) open season election to add his spouse was received and processed in a timely manner by the appropriate DFAS office during the October 2005 through September 2006 SBP Open Season and collecting any premiums due as a result of this correction. _____________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: 9 March 2017 DOCKET NUMBER: AR20150016604 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, in effect, correction of his records to show he elected, under the Reserve Component Survivor Benefit Plan (RCSBP), to provide an SBP annuity to his current spouse versus his now ineligible adult children. 2. The applicant states, in effect: * at the time of his 20 year retirement in 1995, he was divorced with two young children – his RCSBP election was made for them * he remarried in June 2004, and was activated/mobilized to Kuwait in November 2004 * he updated pertinent information before deploying; however, RCSBP was not mentioned * he was not informed RCSBP needed to be updated within one year of his remarriage 3. The applicant provides copies of his: * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the periods ending 8 January 2006, with DD Form 215 (Correction to DD Form 214…), dated 9 February 2006 * DD Forms 214, for the periods ending 15 February 1996, 12 August 1991, and 24 September 1977 * State of Vermont, Certification of Vital Record, Marriage Certificate 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 was born on 2 June 1953 and reached 60 years of age on 2 June 2013. 3. DD Forms 214 show the applicant served honorably during several periods of active and Reserve duty beginning on 30 May 1975. 4. While serving in the Vermont Army National Guard (VTARNG), the applicant received a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) from the State of Vermont on 22 August 1995. 5. On 2 November 1995, within 90 days of receiving the letter, the applicant submitted a DD Form 1883 (Survivor Benefit Plan Election Certificate). In section II (Marital, Dependency, and Election Status) he indicated he was not married, he had children, and he selected "children only" coverage under Option C (immediate coverage). However, he did not sign the reverse page of the DD Form 1883. 6. The applicant married his current spouse on 26 June 2004. 7. A DD Form 214 for the period ending 8 January 2006, corrected by a DD Form 215 on 9 February 2006, shows the applicant was mobilized for active duty on 15 November 2004. He left this period of service married with two children. 8. An NGB Form 22 (National Guard Report of Separation and Record of Service) shows the applicant was transferred to the Retired Reserve on 2 August 2008. 9. The applicant's record shows he filled out a retirement application on 22 July 2011. With the application, he submitted a DD Form 2656 (Data for Payment of Retired Personnel). In Section IX (Survivor Benefit Plan (Election), the applicant elected "spouse only" coverage, indicated he did not have dependent children, and elected coverage based on full gross pay. He and a witness authenticated the form. 10. Orders C03-391973, issued by the U.S. Army Human Resources Command on 11 March 2013, show the applicant was placed on the Retired List 2 June 2013, in the rank/grade of sergeant first class (SFC)/E-7. 11. Defense Finance and Accounting Service (DFAS) records show the applicant has "child only" SBP coverage. 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. 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. 2. 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 3. Once a member elects either option B or C in any category of coverage, that election becomes irrevocable. 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. Once RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. 4. Title 10, U.S. Code, section 1448(5)(a) (Participation by Person Marrying after Retirement, etc.) provides that a person who is not married and who has no dependent child upon becoming eligible to participate in the Plan, but who later marries or acquires a dependent child, may elect to participate in the Plan. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child. 5. 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, the Army's retirement newsletter add open. DISCUSSION: 1. The applicant requests correction of his record to show he elected to provide an SBP annuity to his current spouse. 2. The evidence shows the applicant was issued his Twenty Year Letter on 22 August 1995 and he elected "children only" RCSBP coverage on 2 November 1995. 3. The applicant married on 24 June 2004. There is no evidence he elected to add spouse coverage to his previous "children only" coverage within one year of his date of marriage. His one year window to add spouse coverage to his existing children only coverage ended 24 June 2005. 4. An SBP open season for enrollment was conducted between October 2005 and 30 September 2006. There is no evidence the applicant attempted to add spouse coverage to his previous "children only" coverage during the open season, or evidence he was made aware of the SBP open season, though this open season was underway at the time he first inquired about adding his spouse. 5. The applicant's record shows he attempted to change his RCSBP election to "spouse only" coverage at the time of his application for retirement on 22 July 2011. However, he was not entitled to make a new election at that time. His children, though now adults, were properly elected beneficiaries by virtue of his 2 November 1995 RCSBP election. The children would have received an annuity had he died while the youngest was still a minor. 6. It appears the government erred when it failed to inform the applicant that although his one-year post marriage enrollment period had expired, he could still enroll his spouse during the ongoing open season. The Board may recommend, as a matter of equity, correction of his record to show he added his spouse to his existing RCSBP coverage during the SBP open season of October 2005 through 30 September 2006. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013328 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016604 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2