IN THE CASE OF: BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20160018120 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 IN THE CASE OF: BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20160018120 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. IN THE CASE OF: BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20160018120 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 correction of her records to show she elected to participate in the Survivor Benefit Plan (SBP), spouse coverage, within one year of her marriage. 2. The applicant states that she retired from the New York Army National Guard (NYARNG) in 1995 and she was placed on the retired list on her 60th birthday in February 2009. She married on 22 March 2014. Her request was rejected by the Defense Finance and Accounting Service (DFAS) because it was not submitted within 1 year of her marriage. She was told by DFAS she could appeal the denial within 30 days but the timing and circumstances were not favorable. Due to her current life threatening illness, she was not able to send the necessary documents before the suspense date required to add her spouse as the beneficiary of the SBP. Her mind was preoccupied with sustaining her life. She and her spouse have been together for 21 years and she finds it very hard to accept the fact that she will not be able to leave her retirement pension to her. She now has stage IV cancer and would like this issue favorably resolved. 3. The applicant provides: * Certificate of Marriage Registration * Medical document * Congressional correspondence * DFAS letter, dated 1 June 2016 * DFAS letter, dated 7 June 2016, to her Member of Congress * Email exchange with her Member of Congress * DD Form 2656-6 (SBP Change Certificate), dated 30 March 2016 CONSIDERATION OF EVIDENCE: 1. The applicant was born in February 1949. She served in the NYARNG from 28 November 1973 to 2 October 1977. 2. The applicant reenlisted in the NYARNG on 9 November 1977 and she held administrative, finance, and human resources specialties. 3. She served in a variety of assignments, including active duty from November 1985 to October 1987, and she attained the rank/grade of master sergeant/first sergeant (MSG/1SG)/E-8. 4. On 30 June 1995, Headquarters, NYARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 5. On 10 July 1995, within 90 days of receiving her 20-Year Letter, the applicant submitted a DD Form 1883 (SBP Certificate). She indicated she was neither married nor had dependent children. She selected the Reserve Component SBP (RCSBP) coverage block Option A, indicating that she declined to make an election and deferred her election to age 60. 6. On 12 June 1996, the NYARNG published orders transferring the applicant to the Retired Reserve in the pay grade of E-8 effective 11 June 1996. 7. On 5 June 2009, she submitted a DD Form 108 (Application for Retired Pay Benefits). With her application, she also completed a DD Form 2656 (Data for Payment of Retired Personnel): * she indicated that she was single and had no dependents or eligible beneficiaries under the SBP * she declined to participate in the SBP * she and a witness signed this form and had it notarized 8. On 25 September 2008, the U.S. Army Human Resources Command published orders placing the applicant on the retired list in her retired grade of MSG/E-8 effective 5 February 2009. 9. On 24 March 2014 the applicant married. On 30 March 2016, she submitted a DD Form 2656-6 requesting a change to her SBP coverage, as a result of marriage, from "No coverage" to "Spouse only" coverage based on the full amount. 10. On 1 June 2016, DFAS denied her request in full. DFAS stated that there was no record she requested SBP coverage for her spouse within 1 year of her marriage as stipulated in the law (Title 10, U.S. Code, sections 1447-1445). As such, she was not entitled to enroll her spouse in this program. However, she had the right to appeal this decision to the Defense Office of Hearings and Appeals (DOHA) within 30 days. 11. On 7 June 2016, by letter to her Member of Congress, DFAS officials explained that the applicant did not make a request to enroll in the SBP for her spouse within 1 year of her marriage. Her only opportunity would be during a future Open Season. Open Seasons are authorized by Congress. Additionally, the applicant was mailed a letter explaining that she may appeal the decision to DOHA. 12. She provides email correspondence from her Member of Congress explaining the SBP applicable law. She also provides a medical document, dated 26 August 2016, indicating she has recurrent metastic lung cancer, a stage IV cancer. Her prognosis is very poor and life expectancy is estimated at under one year. REFERENCES: 1. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve 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: * 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 2. Once a member elects either option B or option 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 the RCSBP – the options automatically roll into SBP coverage. Option A participants make an election at age 60. 3. Title 10, U.S. Code, section 1448(a) (5) states for participation by person marrying after retirement: a. Election to participate in plan, a person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan. b. Manner and time of election. 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. Army Echoes is an official newsletter for retired Soldiers, surviving spouses, and families. It informs retired Soldiers, surviving spouses, and their families about changes to their benefits and entitlements, developments within the Army, and how they can continue to support the Army. a. The September-December 2013 edition announced that Department of Defense extended the SBP to same sex spouses. It stated, on 26 June 2013, the Supreme Court ruled Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Based on this ruling, same sex married couples are now entitled to the same military SBP benefits as all married couples. Same sex spouse SBP benefits do not cover the period prior to 26 June 2013. Therefore, no claims for an SBP annuity will be paid and no premiums will be charged for a same sex spouse prior to this date. Retirees whose same sex marriages were on or after 26 June 2013 will have one year from the date of the marriage to initiate a spouse SBP request. If the marriage was prior to this date, the retirees have one year from then to initiate the action. This includes retirees with same sex marriages who have insurable interest SBP elections and now desire spouse SBP. Retirees who were married to a same sex spouse at retirement and retired prior to 26 June 2013 must have that spouse’s concurrence if they elect less than full SBP coverage unless the retiree has child SBP and adds the spouse to that existing coverage. The retirees must take spouse SBP action prior to 26 June 2014. Without the spouse’s concurrence, DFAS will establish automatic full spouse SBP coverage and premiums retroactive to 26 June 2013. b. The January-May 2014 edition reminded affected retirees that time was running out to elect same sex spouse SBP coverage. It stated, on 26 June 2013, the Supreme Court extended military same sex married couples the same entitlement as all other military married couples to the military SBP and RCSBP. Retirees and Reservists with same sex spouses must act within the timelines below or risk losing the new benefits or incurring a large bill for backdated SBP premiums. Retirees and Reservists should determine which category they are in and follow those actions. Retirees or Reservists who married a same sex spouse on or after 26 June 2013, have one year from the marriage date to take action to establish spouse SBP or RCSBP. Spouse SBP coverage and costs start on the first anniversary of the marriage. If no action is taken within one year of the marriage date, spouse SBP or RCSBP coverage is closed for that spouse and any future spouse. All other spouse eligibility requirements must be met. DISCUSSION: 1. By law and regulation, RC Soldiers who complete 20 or more years of qualifying service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP. The law in effect at the time required the Soldier to make an election and return the enrollment form. The applicant's records show she made an election indicating she was single and elected Option A (I decline to make an election until age 60). 2. When the applicant reached age 60 and applied for retired pay, she again submitted an election and indicated she was single and declined participation in the plan. While it is true that the applicant was not married at the time, she still had the option to participate in the SBP for a person who had an insurable interest in her. She did not make such an election. 3. The applicant married in March 2014. By law, 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. The applicant did not submit a request to participate in the SBP within 1 year of her date of marriage. 4. The decision to participate or not to participate in the RCSBP/SBP is a personal decision made by the Soldier and in many cases his/her spouse upon receiving the 20-Year Letter, at the time of retirement, or in light of a life event, such as marriage. As the applicant did not submit a request to enroll her spouse in the SBP within 1 year of her marriage, the only opportunity would be a future Open Season. While the applicant's current medical condition is noted, Open Seasons are authorized by Congress. It is not known when the next Open Season will be. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160018120 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160018120 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2