BOARD DATE: 15 March 2018 DOCKET NUMBER: AR20160005985 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. 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: 15 March 2018 DOCKET NUMBER: AR20160005985 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 15 March 2018 DOCKET NUMBER: AR20160005985 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 records to show he elected Survivor Benefit Plan (SBP) coverage for his spouse and children vice children only when he retired in April 1999. He also requests a personal hearing. 2. The applicant states during his retirement process, the SBP was not fully explained to him. He and his spouse understood that their sons were eligible until a certain age. Upon reaching a certain age, they thought he would receive new paperwork to enroll his wife. He would like his wife to receive his SBP now that his children are ineligible. His recent Retiree Account Statement reflects no SBP election. He served as a member of the South Carolina Army National Guard (SCARNG), with 19 years of active service. His out-processing occurred at Fort Jackson, SC, where he was rushed through the process. 3. The applicant provides his 1999 DD Form 2656 (Data for Payment of Retired Personnel). 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, and 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 in August 1959. He and his spouse, Kim, were married on 10 June 1993. They have two children, (Charles, born in September 1987, and Jordan, born in April 1991). Neither child was listed as disabled. 3. The applicant enlisted in the SCARNG on 28 July 1978. He entered active duty on 1 May 1980. He served through multiple extensions or reenlistments, in various positions, and attained the rank/grade of sergeant first class (SFC)/E-7. 4. On 6 April 1999, at Fort Jackson, SC, and in preparation for his upcoming retirement, he completed a DD Form 2656. He indicated he was married to Kim and they had two children. He elected SBP coverage for children only based on the full gross amount. He and the RSO (retirement Services Officer) authenticated this form with their signatures. 5. Section XII (SBP Spouse Concurrence) of this DD Form 2656 states spouse concurrence is required when member is married and elects children only coverage, does not elect full spouse coverage, or declines coverage. His spouse, Kim, signed this form, and by doing so: * she concurred with the SBP election made by her husband, the applicant * she acknowledged she had received information that explained the options available and the effects of those options * she acknowledged she had signed this form of her own free will 6. The applicant retired on 30 April 1999 and he was placed on the retired list in his retired rank/grade of SFC/E-7 on 1 May 1999. He completed 19 years of active service and a total of 20 years, 9 months, and 7 days of service for retired pay. 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. Since its creation, it has been subjected to a number of substantial legislative changes. 2. Title 10, U.S. Code, section 1447(11)(A) states dependent 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). 3. Title 10, U.S. Code, section 1448 states the program established by this subchapter shall be known as the SBP. Members eligible to participate in the Plan are persons entitled to retired pay and persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age. a. Section 1448, sub-paragraph (a) (3) (A), Spousal consent for certain elections respecting standard annuity. A married person who is eligible to provide a standard annuity may not without the concurrence of the person’s spouse elect not to participate in the Plan; to provide an annuity for the person’s spouse at less than the maximum level; or to provide an annuity for a dependent child but not for the person’s spouse. b. Section 1448, sub-paragraph (a) (4) (A), Irrevocability of elections, Standard annuity. An election under paragraph (2) (A) is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. c. Section 1448a (b) Concurrence of Spouse. (1) A married participant may not (except as provided in paragraph (2)) make an election under subsection (a) without the concurrence of the participant’s spouse; (2) Exceptions, a participant may make such an election without the concurrence of the participant’s spouse by establishing to the satisfaction of the Secretary concerned that one of the conditions specified in section 1448(a)(3)(C) of this title exists; and (3) The concurrence of a spouse under paragraph (1) shall be made in such written form and shall contain such information as may be required under regulations prescribed by the Secretary of Defense. 4. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error. 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. 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 are sufficient to render a fair and equitable decision at this time. 2. The evidence of record shows that, in connection with his retirement, the applicant, in the presence of his spouse, executed a DD Form 2656 on 6 April 1999, electing "children only" SBP coverage based on the full gross pay. His spouse concurred with his election by placing her signature in the appropriate block. 3. The applicant's children were born in 1987 and 1991 respectively. Neither is listed as incapable of self-support because of a disability which incurred before age 18. Both children aged out of the SBP and are no longer eligible beneficiaries. There is no evidence of an error or an injustice. The applicant made an election which did not provide for his spouse and his spouse concurred with his decision. 4. The decision to enroll in or disenroll from the SBP is a personal decision made by the member and his/her family. The applicant and his spouse were clearly counseled by the RSO in April 1999 and made their choices. There is no Government error. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005985 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005985 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2