ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 April 2019 DOCKET NUMBER: AR20160012310 APPLICANT REQUESTS: correction of her late husband's records to show she and her daughter are the eligible beneficiaries of Survivor Benefit Plan (SBP) annuities effective 21 September 2013. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Cooperative Republic of Guyana Certificate of Marriage, dated 21 July 1994 * State of New York Certified Transcript of Birth, dated 18 July 2000 * Alabama Certificate of Death, dated 21 September 2013 * two DD Forms 2656-7 (Verification for Survivor Annuity), dated 15 September 2015 * Defense Finance and Accounting Service (DFAS) letter, dated 6 October 2015 * two Internal Revenue Service Forms W-4P (Withholdings Certificate for Pension or Annuity Payments), dated 19 October 2015 * two Direct Deposit Forms, dated 19 October 2015 * two Self-Authored Letters, dated 5 May 2016 and 22 February 2017 * U.S. Uniformed Services Identification and Privilege Card, dated 4 August 2018 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The former service member (FSM) enlisted in the Regular Army for a period of 2 years on 4 May 1953. He subsequently enlisted in the U.S. Army Reserve on 4 May 1955. He further enlisted in the Army National Guard on 1 May 1956. 3. The FSM's records contain a DD Form 1883 (SBP Election Certificate), dated 13 September 1979, showing: a. he elected spouse-only SBP coverage under option C (Immediate Coverage) based on the full amount of his retired pay and b. he married D____ R. W____ on 4. His DD Form 93 (Record of Emergency Data), dated 6 November 1993, shows his wife (X____ X. X____) and a child (X____ X.), age 21. 5. His records do not contain a divorce decree from this marriage. 6. The applicant (X____ X____) and the FSM were married on. 7. The FSM's records contain an Army National Guard Retirement Points History Statement – Application for Retirement Pay, dated 26 October 1994, showing he completed 37 years of qualifying service for Reserve retired pay at age 60 as of 26 October 1994. 8. Orders P-01-300109, U.S. Army Reserve Personnel Center, dated, retired the FSM and placed him on the Retired List effective. 9. The FSM reached age 60 on 10. Orders 017-037, Office of the Adjutant General, State of New York, dated 26 January 1995, discharged the FSM from the Army National Guard and transferred him to the U.S. Army Reserve Control Group (Retired Reserve) effective 30 January 1995. 11. The FSM's DFAS-Cleveland Form 7220/148, dated 2 December 2009, contains the statement: "NO SBP ELECTION IS REFLECTED ON YOUR ACCOUNT." 12. The FSM's records contain a DD Form 1300 (Report of Casualty), dated 18 November 2013, showing he died on and the report of his death was received on 30 September 2013. 13. A letter from DFAS to the applicant (X____ X____), dated 6 October 2015, informed her the FSM elected to participate in the SBP for spouse and child coverage. 14. On 5 May 2016, the applicant notified DFAS in writing of the FSM's death and requested information pertaining to survivor benefits. 15. DFAS officials confirmed no one is currently in receipt of an annuity related to the FSM's retirement account. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that full relief was warranted. The applicant elected spouse coverage when he got his 20- year letter. The DD Form 1883 reflecting that election was in his file. At his death, he had an eligible spouse beneficiary (to whom he was married for over 18 years and with whom he had a child) and she should receive the annuity as contemplated by applicable law. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 elected his SBP election to cover his spouse on 13 September 1979 and the request was received and processed by the appropriate office in a timely manner. 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 1. Title 10, U.S. Code, section 1448, in effect at the time, provided a way for those who 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: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation, (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, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Once a member elects either option B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in RCSBP and RCSBP coverage automatically converts to SBP coverage upon retirement. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive). 2. Title 10, U.S. Code, section 1447(7), defines "widow" as the surviving spouse of a person who, if not married to the person at the time he became eligible for retired pay, was married to him for at least 1 year immediately before his death. 3. Title 10, U.S. Code, section 1450(a), essentially provides that effective the day after the death of the FSM, a monthly annuity shall be paid to the person's beneficiaries under the SBP, with a surviving spouse or former spouse taking over child beneficiaries, if such spousal election exists. ABCMR Record of Proceedings (cont) AR20160012310 2 1