BOARD DATE: 22 August 2017 DOCKET NUMBER: AR20160002328 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 BOARD DATE: 22 August 2017 DOCKET NUMBER: AR20160002328 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. BOARD DATE: 22 August 2017 DOCKET NUMBER: AR20160002328 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, the spouse of a deceased former service member (FSM), requests correction of the FSM's records to show he elected participation in the Survivor Benefit Plan (SBP) for spouse coverage and that she be paid the SBP annuity. The applicant also requests to appear before the board. 2. The applicant states she received a denial letter from the Defense Finance and Accounting Service (DFAS) concerning SBP eligibility. The letter spelled her name incorrectly. Therefore, she does not trust the accuracy of the information she received concerning the SBP. She requests consideration of the SBP of her deceased husband. She attached the FSM's DD Form 2656 (Data for Payment of Retired Personnel) that includes numerous errors, such as the entries in item 26 (a) through (g) and the form has no witness signature. After they were married on 1 October 2012, they got their military retired identification cards. The FSM continually told her that she would be taken care of because he would be getting his SBP annuity. However, DFAS told her she was not covered under SBP. She states this is a major injustice, she is being forced to sell her home because she no longer has the income to afford it after the FSM's death. DEERS [Defense Enrollment Eligibility Reporting System] facilities should provide more details on SBP laws. 3. The applicant provides: * Letter from DFAS * DD Form 2656-7 (Verification for Survivor Annuity) * Form W-4P (Withholding Certificate for Pension or Annuity Payments) * Social security card * Marriage license * Certification of Death * Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) * DD Form 2656 * AHRC Form 249-2-E (Chronological Statement of Retirement Points) * Retirement Orders * DD Forms 214 (Certificate of Release or Discharge from Active Duty) 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 30 October 1947. After having prior service in the U.S. Air Force/Reserve, the FSM was appointed as a Reserve commissioned officer on 13 July 1989. 3. He was issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 14 August 2002. His service record does not indicate he was married at this time. 4. On 6 October 2005, the FSM completed a DD Form 2656 and his marital status shows "Single." In block 26 (Beneficiary Category(ies)), he marked the blocks indicating that he did not have dependent children; he did not have a spouse; and he did not have eligible dependents under this plan. He also marked the block indicating he elected coverage to be based on full gross pay without supplemental SBP. 5. The FSM reached age 60 on 30 October 2007. Orders P10-792772 published on 15 October 2007, shows he was retired and placed on the retired list effective 30 October 2007 in the rank of colonel. 6. The FSM and the applicant were married on 1 October 2012. 7. The FSM's service record does not shows he made a voluntary election for SBP, spouse coverage within 1 year of the date of their marriage. 8. The FSM died on 29 June 2015. His death certificate shows his marital status as married and lists the applicant as spouse. 9. On 31 August 2015, the applicant submitted a DD Form 2656-7 request SBP annuity. In a 20 October 2015 letter, DFAS denied the applicant's request for SBP and/or the Retired Serviceman's Family Protection Plan (RSFPP). DFAS informed her the FSM did not elect to participate in the SBP or RSFPP. REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay be reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only coverage, if applicable) coverage. 2. Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and 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 one year after the date on which that person marries or acquires that dependent child. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states 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 FSM retired on 30 October 2007. He was not married at that time and elected not to participate in the SBP. 2. The FSM and the applicant were married on 1 October 2012. 3. The FSM's service record is void of evidence which indicates he attempted to enroll in the SBP within one year from the date of marriage. 4. Unfortunately, granting the applicant's request would be in contravention with Public Law 92-425 and Title 10, U.S. Code, section 1448(a)(5) because the FSM did not enroll in the SBP for spouse coverage within one year of the date of marriage. 5. The applicant’s request for a personal appearance hearing was also carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board 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 warranted to serve the interest of equity and justice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002328 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002328 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2