IN THE CASE OF: BOARD DATE: 24 March 2016 DOCKET NUMBER: AR20160000689 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 IN THE CASE OF: BOARD DATE: 24 March 2016 DOCKET NUMBER: AR20160000689 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 showing the applicant made a request for his SBP election to be changed from "children only" to "spouse and children" on 11 October 2013 and the Defense Finance and Accounting Service timely received and accepted his change in election. _____________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. Enclosure 1 IN THE CASE OF: BOARD DATE: 24 March 2016 DOCKET NUMBER: AR20160000689 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 Reserve Component Survivor Benefit Plan (RCSBP) election be changed from "children only" to "spouse and children." He also requests a personal hearing. 2. The applicant states: a. On 4 August 2015, he submitted a request to the U.S. Army Human Resources Command (HRC) to change his RCSBP election. He was married on 11 October 2013 and his spouse had not been added to his SBP as it did not appear to be common knowledge within his command that this needed to be corrected. Upon notification of the requirement in July 2015, he submitted the request to change his election within 30 days; however, it was denied by HRC. b. In August 2012, he received his notification of eligibility for retired pay for completion of 20 years of service (Twenty-Year Letter). At that time, he was divorced and had a dependent child and was advised by his higher headquarters (HQ) to select "children only" on the DD Form 2656-5 (RCSBP Election Certificate). However, he was not told he had 1 year to change the coverage after an event occurred that required a change. c. During annual training in July 2015, he was notified by his higher HQ during a record review of retirement benefits that his election needed to be updated within 1 year of a qualifying event. When he remarried in October 2013, he spoke with his unit to ensure that everything was updated to reflect his recent marriage; however, nothing was mentioned that anything needed to be corrected on his RCSBP election. He was still serving and had not yet retired. He updated the Defense Eligibility Enrollment Reporting System (DEERS), basic allowance for housing (BAH), tax withholding amounts, and Service Members Group Life Insurance (SGLI), however, his SBP election was not adjusted. A State representative that was going over retirement benefits mentioned that they too had just recently learned there was a 1-year timeframe to make a change to the RCSBP election for qualifying events. d. After he sent the DD Form 2656-6 (SBP Election Changer Certificate) changing his election from "children only" to "spouse and children," he contacted HRC in late August to ensure the paperwork was received and to check on the status. He was informed it would be denied as it was over the 1-year timeframe; however, he could apply for a correction to the Army Board for Correction of Military Records (ABCMR). It was not until 16 December 2015 that he received the official denial from HRC. e. He realizes he did not meet the 1-year requirement; however, the year requirement was not common knowledge within his command or State HQ. As a battalion commander, he instructed the S1 personnel to update their Standard Operating Procedures (SOP) to add another step of the record review to ensure that if Soldiers had over 20 years of service that the Soldier’s SBP was updated correctly on a yearly basis as they reviewed other documents in the record. He directed this in an effort to ensure that Soldiers do not have this occur to them in the future and to assist in getting the word out about the 1-year requirement. 3. The applicant provides a letter, DD Form 2656-6, marriage certificate, DD Form 2656-5, and 20-Year Letter. CONSIDERATION OF EVIDENCE: 1. The applicant was born on 19 June 1975. He was serving in the Kentucky Army National Guard (KYARNG) in the rank/grade of major (MAJ)/O-4 and was assigned to the 2nd Battalion, 138th Field Artillery (FA) Regiment, Lexington, KY. 2. On 14 August 2012, the ARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). The letter notified him, in part, that he had completed the required years of service and he would be eligible for retired pay upon application at age 60. If he was married or had a dependent child, he would automatically be enrolled in the RCSBP under Option C (Immediate Coverage) based on full retired pay, unless he elected different or no coverage within 90 days of the notification. 3. The applicant provides, and his records contain, a DD Form 2656-5 he completed on 13 October 2012 wherein he indicated he was single at the time and had one dependent child, born on 12 August 2002. He elected RCSBP Option C for children only. 4. On 3 October 2013, he was promoted to the rank/grade of lieutenant colonel (LTC)/O-5 and was assigned as the Commander, 2nd Battalion, 138th FA. On 11 October 2013, he married his current spouse. 5. On 4 August 2015, he submitted a DD Form 2656-6 to HRC requesting his RCSBP election be changed from children only to spouse and children. By letter, dated 16 December 2015, HRC denied his request and stated he had not requested to change his RCSBP election within the 1-year requirement. 6. The applicant continues to serve in the ARNG in the rank of LTC. 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; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. SBP elections are made by category and not by name. 2. Once a member elects either Options B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60 and cannot cancel SBP participation or change options they had in RCSBP - it automatically converts to SBP coverage. 3. Title 10, U. S. Code, section 1448(a)(5), provides that a person who is not married or has no dependent child upon becoming eligible to participate in the RCSBP 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 in which that person marries or acquires that dependent child. 4. Children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22 if still in school. A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 22 if a full-time student). 5. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The evidence of record confirms that at the time the applicant received his Twenty-Year Letter in 2012, he held the rank of MAJ, was divorced, and had one dependent child. He elected RCSBP for children only under Option C. He married his spouse on 11 October 2013 and did not submit a request to change his election to spouse and children until August 2015. He contends he was unaware of the requirement to change his election within 1 year of the date of his marriage. 3. As he selected RCSBP for children only at the time he received his Twenty-Year letter, it is reasonable to presume he would have submitted the request to change his election to spouse and children within 1 year of his marriage if he had been aware of the 1-year requirement to do so. Also, the speed with which he sought to remedy his mistake further supports this notion. As a matter of equity, it would be appropriate to show that he did so. //NOTHING FOLLOWS// ABCMR Record of Proceedings @#!CASENUMBER Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20160000689 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2