IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20160012925 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration 1. IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20160012925 THE APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests correction of his record to show he elected spouse coverage under the Survivor Benefit Plan (SBP) within one year of marriage. 2. The applicant states: a. He is requesting the admittance of his spouse into the SBP. When he retired from the military, he was not married. He thought that when he enrolled his wife into the Defense Enrollment Eligibility Reporting System (DEERS), that she was automatically enrolled into the SBP. When he realized his error, he was told it was too late and he would have to wait for an SBP open enrollment period. Recently, when the open enrollment came up in Army Echoes, he contacted MacDill Air Force Base (AFB) in Tampa, FL. The individual he spoke to was very helpful and informed him of all the correct information he needed to provide to be able to enroll his spouse into SBP. b. He was married on 6 July 1996, and at that time, he was already retired from the Army. He took his new wife to the military base in MacDill AFB in Tampa to add her as his beneficiary, to sign her up for health coverage, and get her a military identification card. He made the terrible assumption that when he went to DEERS, it included adding her to SBP. c. In December 2013, he retired from the Collier Country Sheriff’s Department, where he had worked since his retirement from the military. With total irresponsibility on his part, he did not realize or check into the fact that he had not signed her up for the SBP. It was not until the spring of 2015, after an injury, that caused him to be off his feet for about six months, and then, he was on crutches and braces for another year. It was at that time, he started checking to see if all of his beneficiary paperwork was in order. It was then, that he first realized he had made a terrible mistake and that he had not added his wife to SBP. At this point, he filled out the application only to be told that he would have to wait for an open enrollment period to add his spouse. Enclosure 2 d. After reading Army Echoes, he saw an that an open enrollment period was being offered. He called a person at the MacDill AFB and he was told how to enroll his spouse. e. He and his wife have been married for 20 years, and when he realized that she was not covered for an SBP annuity, they both panicked. If something would happen to him, his wife would only be left with his social security check, and she would be homeless. When he first married his wife, she was a widow with three young children to support. She was working several jobs to make ends meet, but still providing for her children. She has no retirement savings, no career that ever offered anything like SBP, and money was tight. f. He is not asking for pity, but this is all due to his error. They have the most fantastic marriage possible and he believes with all his heart that she deserves to have this SBP benefit. He takes full responsibility by not checking sooner to ensure his wife was added as a SBP beneficiary. g. He realizes that there may be penalties and back pay of premiums involved, and he is willing to see if this is something he will be able to do, upon approving his request. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting documents: * a self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Marriage Certificate dated 16 July 1996 * DD Form 2656 (Data For Payment of Retired Personnel), dated 5 July 2016 * Retiree Account Statements 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems. * DD Form 2656, dated 16 May 1995 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 1. 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, the SBP, enacted 21 September 1972, 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. Changes in SBP options are not authorized except in specific instances, or authorized by law. 3. Title 10, U. S. Code, section 1448 (Application of Plan) 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. Open seasons are periodically authorized by Congress and allow eligible non- participants to enroll in SBP or, if participating, increase their level of participation. 5. Public Law 105-261, enacted 17 October 1998, established an open enrollment season running from 1 March 1999 through 29 February 2000. 6. Public Law 108-375, enacted 28 October 2004, established an open season to be conducted 1 October 2005 through 30 September 2006. Both gave non- participating retirees the opportunity to enroll in SBP and required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so. Extensive publicity was given in Army Echoes. 6. Echoes is an Army bulletin published for retirees, and its purpose is to keep them abreast of developments in the Army. It is available online, and it routinely contains the following guidance: Remember: You are responsible for updating your retired pay file information at DFAS-CL, using the London, KY mailing address below, within one year of the event if you marry, remarry, have a child, are widowed or divorced and need to make or update an SBP election DISCUSSION: 1. 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. His record shows a DD Form 2656, dated 16 May 1995, which indicates he was not married, at this time, but had two dependent children, the younger of whom was his 15 year-old daughter X . He did not elect SBP coverage for his dependent children. 3. On 31 July 1995, the applicant was honorably retired from active duty service in the rank/grade of master sergeant (MSG)/E-8. 4. On 6 July 1996, the applicant married X X (his current spouse.) 5. Because he had not elected SBP coverage for his dependent daughter, he was not eligible to initiate coverage for his new wife, absent an open season enrollment. 6. Congress periodically authorizes open seasons to provide previously non- participating retirees with enrollment opportunities, and permit changes in the coverage of those already participating. When authorized, these open seasons are announced in the Echoes newsletter. The most recent open season, which would have applied to applicant’s family scenario, occurred from October 2005 through September 2006. The applicant is aware that if he enrolled during that time period, he would have been required to pay backdated premiums from the date of his marriage. 7. In the applicant’s statement, he states that he contacted MacDill AFB regarding an open season eligibility, which he noticed while reading a copy of the Army Echoes. It appears the applicant has confused that open season period, which was specific to retirees who were married, divorced (required to provide former SBP coverage), then remarried. When their former spouses had died, this open season allowed them to add their current spouse in that limited circumstance with a more general open season as noted above. 1. 8. A DD Form 2656, dated 5 July 2016, shows the applicant submitted an SBP request for spouse only coverage, at his full base pay amount. This document is signed by the applicant, his spouse, and was notarized on the same day. However, his request was denied by the Defense Finance and Accounting Service (DFAS), since his request was received outside the one-year eligibility period. 9. The applicant provides copies of his RAS, which shows he had no SBP beneficiary listed, but has his spouse listed as his beneficiary for retired pay. //NOTHING FOLLOWS// ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20160012925 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. Enclosure 1 DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 24 May 2019 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for XXXXXXXXX, SSN XXXXXXXXX, AR20160012925 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 15 March 2019, in which the Board majority recommended denial of the applicant’s request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected to show he elected spouse coverage under the Survivor Benefit Plan (SBP) during the SBP open enrollment period beginning on 1 October 2005 and that his election was accepted and processed. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 22 September 2019. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl CF: ( ) OMPF Printed on Recycled Paper