ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20160014691 APPLICANT REQUESTS: * enrollment of his spouse into the Survivor Benefit Plan (SBP) * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 3072-1A (Request for Waiver of Disqualification for Enlistment/Reenlistment in the Regular Army (RA) for Personnel Applying from Civilian Life) and allied documents, dated 4 April 1983 * Orders Number 057-0272, dated 26 February 2013 * DD Form 2656 (Data for Payment of Retired Personnel), dated 19 March 2013 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 21 March 2013 * Matter of Mayberry, 1982 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 applicant states in pertinent part, retirement services told him he was not eligible for SBP because he had declined it when he was medically retired in April 1983. He was not married at the time but was married on 29 November 1985. When he added his spouse to the Defense Enrollment Eligibility Reporting System in December 1985 at Myrtle Beach Air Force Base, SC, he was not informed he had one year to sign up for SBP. In July 1989 he enlisted in the Army and served 23 additional years attaining the rank of chief warrant officer five and retiring with more than 30 years of active service. He believes he should be eligible for SBP for his spouse who supported his service. He believes he is eligible for SBP because when he enlisted on active duty in July 1989 he was told he was eligible for SBP. During his 23 years of service he believed his spouse would be protected by SBP. He believes his additional 23 years of service are sufficient to make him eligible for SBP. When he returned to active duty, he was not brought on active duty as a retired on active duty Soldier. Further at no point before, during or after his enlistment, was he informed he was no longer eligible for SBP. 3. A review of the applicant’s service records show the following on: * 3 October 1974 – enlisted in the RA and was honorably released from active duty * 25 September 1979 – enlisted in the RA * 14 December 1982 – Medical Evaluation Board convened with a recommendation the applicant be placed on the Temporary Disability Retired List (TDRL) and he was referred to a Physical Evaluation Board (PEB) for consideration of separation from the military * 4 April 1983 - honorably retired from active duty by reason of physical disability, permanent * 23 June 1989 – enlisted in the RA with waiver of medical discharge * 13 February 1992 – appointed as a Reserve warrant officer, executed an oath of office and served in various stateside and overseas assignments * 22 January 2013 – PEB convened and found the applicant physically unfit and recommended his disposition be permanent disability retirement with a combined recommended 90% rating * 21 March 2013 – honorably retired from active duty by reason of disability, permanent (enhanced), DD Form 214 shows: * he completed 21 years, 1 month, and 9 days of net active service with 9 years, 1 month, and 28 days of prior active service and 2 years and 21 days of prior inactive service for a total 30 years, 3 months, and 7 days creditable service for retirement 4. The applicant provides: * DA Form 3072, showing the applicant’s submission for an exception to policy for reentry into the Army and allied documents * Orders Number 057-0272, issued by Headquarters, U.S. Army Garrison, Fort Bragg, NC showing he was retired by reason of permanent physical disability with 30 years, 3 months, and 7 days of creditable service for retirement * DD Form 2656 showing the following in: * section 8 (Dependency Information) he listed his spouse Ms. C- D-, and they were married on 29-XX-19XX, he also listed one child Ms. S- D-who was 23 years of age at the time of application and was not permanently disabled * section 9 (SBP Election) he elected coverage for spouse only * Matter of Mayberry wherein a service member was retired due to a physical disability and returned to active duty, did not retire nor did he incur additional disabilities, and reverted to his original disability retirement status, he would retain his retired pay because he did not affirmatively waive it * Legal opinion (which the applicant received from the Retirement Services Center) wherein the response states the applicant’s opportunity to enroll his spouse in SBP closed when he did not make an election within 1 year of his marriage on 29 November 1985 5. Title 10, USC, 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. 6. 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. An election, once made, was irrevocable except in certain circumstances. Elections are made by category, not by name. 7. DOD Financial Management Regulation (FMR) 7000.14, Vol. 7b, Chapter 45 provides that, if a retired member from the temporary disability retired list (TDRL) returns to active duty and is later retired, any election in effect while on the TDRL is void and a new SBP election must be made. 8. Army Regulation (AR) 15-185 (ABCMR) states 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 1. The Board found that the applicant remained in service long enough to qualify for a different form of retirement in March 2013 from his first medical retirement in 1983. New orders, dated 26 February 2013, were issued placing the applicant on the retired list effective 22 March 2013. The assertion that the applicant merely reverted to the 1983 retirement orders is unsupported by the record. Therefore, the applicant should have been allowed to elect spouse-only SBP coverage in March 2013. 2. The Board found that there was enough evidence to make a decision and a personal appearance is not necessary. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by determining the 19 March 2013 DD Form 2656 represented a valid election for spouse only SBP coverage and his election was received and processed in a timely manner by the appropriate DFAS office. 2. Because the Board determined the evidence presented is sufficient to warrant a portion of the requested relief, the Board recommends denial of so much of the application that pertains to a personal appearance before the Board. 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, 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. 3. 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. 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. Elections are made by category, not by name. 4. DOD Financial Management Regulation (FMR) 7000.14, Vol. 7b, Chapter 45 provides that, if a retired member from the temporary disability retired list (TDRL) returns to active duty and is later retired, any election in effect while on the TDRL is void and a new SBP election must be made. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. ABCMR Record of Proceedings (cont) AR20160014691 4 1