BOARD DATE: 11 January 2018 DOCKET NUMBER: AR20160006208 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: 11 January 2018 DOCKET NUMBER: AR20160006208 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 to amend the decision of the ABCMR set forth in Docket Number Docket Number AR20140010677, dated 6 March 2015. _____________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: 11 January 2018 DOCKET NUMBER: AR20160006208 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 reconsideration to, in effect, amend the records of her late husband, a former service member (FSM), to show he elected "spouse only" Reserve Component Survivor Benefit Plan (RCSBP) coverage. 2. The applicant states she had a conversation with the FSM approximately 3 weeks before he died. She asked him what would happen to his military benefits if he died. He stated, "It would go to you." The FSM had no idea of any form that needed to be filled out or changed once they were married. Had he been aware of this loophole, he would have taken care of it. The FSM was in the process of gathering all of his paperwork to collect his retirement when he had a heart attack and died. 3. The applicant provides a copy of Army Board for Correction of Military Records (ABCMR) Docket Number AR20140010677. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140010677 on 6 March 2015. 2. The applicant provides new evidence and argument which warrant consideration by the Board. 3. The FSM was born on 24 March 1953. 4. Having prior enlisted service in the U.S. Navy, the FSM was appointed as a second lieutenant in the Georgia Army National Guard (GAARNG) on 12 June 1982. 5. The FSM's record contains: a. A divorce decree which shows he and his first wife were granted a divorce on 6 October 1993. The decree shows two children were born of that marriage and the FSM adopted the first wife's daughter, who was also a minor. The decree did not stipulate the FSM would provide SBP coverage for his former wife and children. b. A Notification of Eligibility for Retired Pay at Age 60 letter, prepared on 9 July 1996, wherein the FSM was notified of completion of the required years of service and eligibility for retired pay upon application. The letter indicated an SBP Summary was enclosed. 6. On 18 October 1996, the FSM completed and signed a DD Form 1883 (SBP Election Certificate). He indicated he was not married and had a dependent daughter (born on XX June 1984) and a son (born on XX May 1987). He elected "children only" coverage, Option C (immediate coverage) based on the full amount. The form stated in: a. Section III (Family Information) of the DD Form 1883, "I have the following unmarried dependent children under age 22 (or over age 22 and incapable of self-support because of a disability incurred before age 18, or after 18, but before age 22 while attending school)." b. Monthly Cost and Annuity, "When all children cease to be eligible for an annuity, the additional cost for child coverage shall stop. The reduction in cost is effective the first day of the month following that in which the last child ceased to be eligible for an annuity." 7. On 8 January 1997, the FSM was honorably discharged from the GAARNG and transferred to the Retired Reserve. 8. On 7 December 1998, the applicant and the FSM married. 9. A review of the FSM's records show no evidence that the FSM elected to change his SBP coverage by adding spouse coverage within 1 year of the date of his marriage to the applicant (7 December 1999). 10. The FSM's children were no longer eligible for an SBP annuity effective XX June 2006 and XX May 2009, respectively. 11. On 24 March 2013, the FSM reached age 60. There is no evidence he applied for retired pay at this time. 12. The FSM died on 4 August 2013. He was 60 years and 4 months of age. His death certificate shows he was married to the applicant at the time of his death and she was listed as the informant. 13. The Soldier Management System, located on the U.S. Army Human Resources Command Integrated Web Service, shows on 3 March 2014 the applicant was advised in writing that the FSM never completed a DD Form 2656-6 (Election Change) to cover his first wife or her for over 15 years. 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. Elections are made by category, not by name, and are irrevocable except as provided for by law. Children remained eligible for coverage until age 18 or 22, if a student. If disabled before age 18, or 22 if a student, children would remain eligible to receive the SBP annuity for life. SBP costs for child coverage stop when there is no longer an eligible child beneficiary. 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. 3. 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 1 year after the date on which that person marries or acquires that dependent child. DISCUSSION: 1. The evidence of record clearly shows the FSM completed a DD Form 1883 on 18 October 1996. The FSM indicated on the form that he was not married and he elected "children-only" coverage for his minor daughter and son. On 8 January 1997, the FSM was separated from the GAARNG and was transferred to the Retired Reserve. On 7 December 1998, the applicant and the FSM were married. 2. The FSM's children turned 22 years of age on XX June 2006 and XX May 2009, respectively. Therefore, they were no longer eligible beneficiaries. If the FSM wanted spouse coverage, by law, he was required to submit a written request for RCSBP spouse coverage within 1 year (7 December 1999) of his marriage to the applicant in order to be eligible to participate in the RCSBP. There is no evidence of record and the applicant did not provide evidence showing this was done in a timely manner. 3. There is no legal basis to grant the applicant relief. The evidence clearly shows the FSM did not submit a written request for RCSBP spouse coverage within 1 year of his marriage to the applicant (7 December 1999). The FSM died on 4 August 2013. By law, the applicant is not entitled to a RCSBP annuity. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006208 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006208 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2