BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160000893 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: 28 September 2017 DOCKET NUMBER: AR20160000893 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 completed a DD Form 2656 (Data For Payment of Retired Personnel) on 11 April 2013, showing he made a valid and timely request to add his current spouse (Mira) for Reserve Component Survivor Benefit Plan coverage at the full base amount, and showing that the form was accepted and processed by the Defense Finance and Accounting Service within one-year of his marriage. ___________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: 28 September 2017 DOCKET NUMBER: AR20160000893 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 his record to show he added his new spouse for Reserve Component Survivor Benefit Plan (RCSBP) coverage, at full base amount, within one year of their marriage. 2. The applicant states: a. He retired from the U.S. Army Reserve (USAR) in August 2015 and received his retirement pay on 1 October 2015; however, he noticed that his spouse was not listed with his daughter for SBP. He immediately contacted the Defense Finance and Accounting Service (DFAS) to inquire why his wife was not listed on his RCSBP. b. After 3 months, he was finally told that he did not add his spouse to RCSBP coverage within one year of his marriage, nor did he contact DFAS notifying them of his added election. He would need to contact his Reserve unit and request an administrative adjustment for his election. c. He claims that he notified the RCSBP section of DFAS on 2 February 2013, 8 months after he married Mira, on 4 July 2012. He attended a USAR Retirement Planning meeting for the sole purpose of ensuring his spouse was insured under the RCSBP and was verbally told that she was covered. He feels that he did everything he needed to do to ensure she was added for RCSBP coverage, within the one-year-time-limit of their marriage. 3. The applicant provides: * State of Maine Certified Abstract of a Certificate of Marriage, dated 4 July 2012 * Order Number 019120, issued by 88th Regional Support Command, Fort McCoy, WI, dated 10 January 2013 * DD Form 2656 (Data For Payment of Retired Personnel), dated 15 March 2015 * Print-out of "My DEERS" (Defense Enrollment Eligibility Reporting System), dated 21 October 2015 * DD Form 93 (Record of Emergency Data), undated 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 previously married 9 August 1981 and divorced in 2001. It appears that there was no requirement for the applicant to make a RCSBP election for "former spouse" coverage pursuant to their divorce decree or separation agreement. 3. The applicant is a Reserve Component officer who received his Notification of Eligibility (NOE) letter on 1 October 2003. 4. The evidence of record shows on 30 December 2003, the applicant, although divorced, had children from his previous marriage; therefore, he completed, signed, had witnessed, and submitted his DD Form 2656-5 (RCSBP Election Certificate), electing Option C (Immediate Annuity) for RCSBP "children only" coverage. 5. The applicant and his current spouse (Mira) were married on 4 July 2012. 6. Order Number 019120, issued by the 88th Regional Support Command, Fort McCoy, WI, dated 10 January 2013, shows the applicant was issued orders to attend USAR Retirement Planning meeting on 2 February 2013, prior to his retirement. 7. The applicant states he attended a USAR Retirement Planning meeting for the sole purpose of ensuring that his current spouse (Mira) would be covered under the RCSBP. On 2 February 2013 (within 8 months of his marriage), he notified and submitted the appropriate documents to his Reserve unit to add his spouse for RCSBP coverage within the one-year time of his marriage, and he was verbally told she was covered. 8. The applicant provides a DD Form 93 (Record of Emergency Data), dated 27 October 2014 that lists his current spouse (Mira) as the point of contact in case of emergencies, and he provides a printout from "My DEERS" (Current DEERS Family Coverage for [Applicant]), which lists his spouse (Mira) for TRICARE Standard and Pharmacy Healthcare coverage, dated 27 October 2014. 9. The applicant provides a DD Form 2656, dated 15 March 2015 that shows he applied for retirement pay, listed his current spouse as his beneficiary for unpaid retired pay, and for SBP coverage, based on the full amount of his retired pay. The DD Form 2656 was signed by the applicant and witnessed on the same date. 10. Orders C08-597303, issued by U.S. Army Human Resources Command (HRC), dated 18 August 2015, shows the applicant was placed on the Retired List in the rank/grade of Colonel (COL)/O6, with an effective date of 26 August 2015. 11. An email was provided by the HRC, on 27 June 2017, states, HRE received the RCSBP election on 11 April 2013; however, the applicant's record did not contain a copy. HRC states it is possible that the form was forwarded to DFAS for filing. REFERENCES: 1. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements the statutory authority governing what constitutes qualifying service for retired pay for nonregular service in the Reserve Components. Chapter 2, in pertinent part, states that to be eligible for retired pay, an individual must have attained the age of 60 and completed a minimum of 20 years of qualifying service. A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points. 2. 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: * 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. 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 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, in which that person marries or acquires that dependent child. DISCUSSION: 1. The applicant contends he submitted a timely request to add his current spouse (Mira), to his RCSBP coverage, at the full base amount, within one-year of their marriage. 2. The applicant was married to his first wife on 9 August 1981; divorced in 2001, and they had three children together. Neither their divorce decree nor their separation agreement contained a former spousal provision for RCSBP coverage. 3. Once the applicant received his 20-Year letter in 2001, he made an RCSBP election for "children only" coverage on 30 December 2003. 4. The applicant married his current spouse (Mira) on 4 July 2012. 5. The law states that a change of election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year of the date that person marries. The applicant alleges he completed an RCSBP election form during his Reserve Retirement Planning meeting on 2 February 2013 (within 8-months of his marriage), adding his current spouse (Mira) to his RCSBP coverage, and was told by his Reserve unit he was "good-to-go." However, it appears his request to add his new spouse to his RCSBP election was never submitted to DFAS as required by law. 6. However, the HRC provides an email, dated 27 June 2017, which appears to suggest that the applicant submitted a timely written request for an RCSBP election within one-year of his marriage (4 July 2012) on 11 April 2013, to add his current spouse to his RCSBP coverage. However, in this document, it is unclear what the applicant was requesting. 7. While there is no concrete documentation to show the applicant submitted a valid and timely RCSBP election form, showing he added his new spouse for RCSBP coverage, the evidence suggests: a. He was issued orders and he attended the Reserve Retirement Plan Meeting. It is reasonable to presume the Reserve Retirement Plan Meeting covered all issues involving his retirement, to include RCSBP and SBP briefings. b. HRC confirmed that the applicant submitted an RCSBP election on 11 April 2013, which was within one-year of his marriage to Mira. c. He was given incorrect information by his Reserve unit that his new spouse was added for RCSBP coverage. 8. Periodically, Congress authorizes an Open Season to allow retirees certain changes to their SBP participation or non-participation. The last Open Season was in 2005. Extensive publicity was provided in Army Echoes. The literature published in Army Echoes warns that for a retiree with a high number of years since first being able to enroll a beneficiary in the SBP, and whose retired pay is high, the enrollment premium alone could be substantial. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000893 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000893 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2