IN THE CASE OF: BOARD DATE: 4 February 2019 DOCKET NUMBER: AR20160010075 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration 1. IN THE CASE OF: BOARD DATE: 4 February 2019 DOCKET NUMBER: AR20160010075 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests, in effect, correction of his records to show he made a timely election to provide coverage to his current spouse under the Reserve Component Survivor Benefit Plan (RCSBP). 2. The applicant states: a. His initial DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 18 February 1995, was for child-only as he was single at the time. He remarried on 3 July 1999 and was given his first opportunity to change his SBP election on 3 March 2009, when his retirement paperwork was being prepared. b. Either during annual personnel records reviews or any other time between July 1999 and March 2009, he was not given an opportunity to update his SBP election from child-only to spouse. In 1997, his child-only election expired since his son was 18 years old and was no longer an eligible beneficiary. Since his remarriage on 3 July 1999, his wife has been denied her rights to full SBP benefits without her consent. It was not brought to his attention until he contacted the Defense Finance and Accounting Service (DFAS), with a question about SBP and two confusing sections on his DFAS retirement pay statement. c. After submitting his retirement paperwork on 3 March 2009, which included his DD Form 2656-6 (SBP Election Change Certificate), neither he nor his spouse were informed that his SBP election change had not been processed as submitted. "Public Law 92-425 provides that every member having a spouse or child who retires after that date is automatically covered under SBP at the maximum rate unless that member elected otherwise prior to retirement." He elected for full coverage for his spouse on 3 March 2009, more than a year before his retirement on 13 July 2010. This error/injustice has jeopardized his wife's future financial security. Enclosure 2 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting document(s): * State of Minnesota Divorce Decree, filed on 28 August 1990 * State of Minnesota Certificate of Marriage, dated 3 July 1999 * DD Form 2656-6, dated 3 March 2009, with self-authored statement * Memorandum For Record (MFR), dated 27 April 2016, subject: SBP for [Applicant] 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * Memorandum, subject: Notification of Eligibility for Retired Pay at age 60, dated 14 November 1994 * DD Form 1883, dated 18 February 1995 with auxiliary documents * Army National Guard (ARNG) Retirement Points History Statement Application for Retirement Pay, dated 15 June 2010 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 16 April 2010 * NGB Form 22 (Report of Separation and Record of Service), for the period ending 14 June 2010 * Orders P06-923941, dated 15 June 2010 REFERENCES: 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. 2. 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. 2. Public Law 95-397, enacted 30 September 1978, established the Reserve Component SBP (RCSBP). The RCSBP provided a way for RC members, who qualified for non-regular retirement but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60. Three options were available: 2. * 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 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. 4. Periodically, Congress authorizes an “open season” to allow retirees certain changes to their SBP participation or to initiate SBP participation. The last open season was in 2005. DISCUSSION: 1. While 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 born in _______ and reached 60 years of age in ________. 3. While serving in the ARNG, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 14 November 1994. 4. The applicant completed and submitted a DD Form 1883, on 18 February 1995. In section II (Marital, Dependency, and Election Status) he indicated he was not married, he had children, and he selected "children only" coverage under Option C (immediate coverage) based on full gross retired pay. 5. The applicant married his current spouse on 3 July 1999. His record provides no evidence he took action to update his RCSBP election in conjunction with his marriage within the one-year statutorily mandated period. 1. 6. The applicant completed a DD Form 2656 on 3 March 2009, in order to initiate retired pay upon reaching age 60. In Section IX (SBP Election), the applicant elected "spouse only" coverage, indicated he did not have dependent children, and elected coverage based on full gross pay. A witness authenticated this form on the same date. However, by statute applicant had no authority to make a new election. His original election simply rolled into suspended SBP child coverage (though no premiums were due because he had no minor children). 7. Orders P06-923941, issued on 15 June 2010, show the applicant was placed on the Retired List on 13 July 2010, in the rank/grade of colonel (COL)/O-6. 8. A Memorandum of Record from the Chief, Army Personnel Division, Joint Force Headquarters - Minnesota, Saint Paul, MN, states the applicant reviewed his SBP on 3 March 2009, with the State Retirement Counselor and noted that his SBP was no longer current due to his marriage on 3 July 1999. The State Retirement Counselor completed and submitted a DD Form 2656-6 to correct the SBP election. 9. Notwithstanding the lack of Government error and the fact that the FSM had a continuing opportunity to make inquiry regarding his RCSBP/SBP, of which he did not avail himself, the Board may recommend, as a matter of equity, correction of the applicant's record to show he elected spouse RCSBP coverage within one year of his 3 July 1999 marriage. //NOTHING FOLLOWS// ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 February 2019 DOCKET NUMBER: AR20160010075 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 he made an election to provide his spouse an annuity in the event of his death, under the Reserve Component Survivor Benefit Plan (RCSBP), within one year of his marriage (not later than 3 July 2000) * showing his request was received and processed in a timely manner by the appropriate DFAS office (not later than 3 July 2000) * collecting any premiums due as a result of this correction 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