ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 August 2019 DOCKET NUMBER: AR20170002964 APPLICANT REQUESTS: In effect, disenrollment from the Survivor Benefit Plan (SBP) and reimbursement of premiums due to death of beneficiary. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * letter to Defense Finance and Accounting Service (DFAS), dated 14 July 2016 * copy of Certificate of Death for spouse * response from DFAS, dated 15 July 2016 * supporting documents from DFAS, such as: * letter to DFAS, dated 6 November 2006 * copy Certificate of Marriage dated 6 October 2005 * letter from clerk of courts, dated 1 November 2016 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 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: * on 13 July 2016, he called DFAS to request his SBP be terminated and any payments being deducted from his retired pay to be returned to him due to his late wife passing on 2 April 2005 * on 15 July 2016, he received a letter from DFAS in reference to his call which stated that he was married to a new spouse and included a copy of a marriage certificate * DFAS requested a divorce decree or death certificate * he was not married * he has not remarried since his late spouse M_B_C’s passing * he was informed by the Office of the Clerk of Circuit Court in that the marriage license provided by DFAS does not exist in their records * the only requests he submitted to DFAS after his wife’s passing were to discontinue his SBP coverage, have accrued monies returned to him, and to change his beneficiary to his daughter 3. In a self-authored letter dated 12 December 2016, the applicant states, in effect: * on 14 July 2016, when he spoke with a DFAS employee and again explained that he wanted to cancel his SBP due to his wife passing, he was told that he was married to another identified person, * he was asked to send a copy of his late wife’s death certificate and a completed DD Form 2656-6 (SBP Election Change Certificate) to DFAS with a request for reimbursement from any accrued monies * the staff member of the Office of the Clerk of Circuit told him that the only marriage license in his name was for 26 July 1995 to his late wife and that she would prepare a notarized letter stating that he was never married to 4. On 8 September 1983, the US Army Reserve (USAR) Components Personnel and Administration Center issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). This letter notified him of the completion of required service and eligibility for retired pay upon application at age 60 and his entitlement to participate in the Reserve Component Survivor Benefit Plan (RC-SBP). It further stated that he had 90 days from receipt of this letter to elect to participate in the RC-SBP or remain uncovered until age 60 and is again afforded the opportunity. 5. On 30 November 1990, Order Number 971-1 transferred the applicant from his unit of assignment to the USAR Control Group (Reinforcement). On 9 October 1995, Orders Number C-08-5508500, issued by USAR Personnel Center, honorably released him from the Control G transferred to the Retired Reserve. 6. On 14 August 1996, the applicant was informed that since there was no record of his DD Form 1883 (Survivor Benefit Plan Election Certificate) being received [by the 90 days upon receipt of the 20-year letter], his request for SBP must go before a review board for approval. He was asked to submit his election for review. A second letter was also sent to the applicant informing him that an election was not received on 8 April 1997. 7. He completed an SBP election form on 27 May 1998. He elected coverage for his spouse only with Option C – Immediate coverage. He and his wife signed the SBP Election certificate on 27 May 1998. 8. On 1 February 1999, he was placed on the retired list and was authorized to receive retirement pay. 9. The applicant’s spouse passed away on 2 April 2005. 10. His service records are void, nor did he provide, an SBP election form changing his coverage since 27 May 1998. 11. The applicant provides: a. Letter to US Army Military Retirement Pay, DFAS, dated 14 July 2016 wherein the applicant stated the following: * he requested to cancel his SBP coverage for his wife who is deceased * he was informed by an employee that he was married to * he told this employee that his wife passed away in 2005 and he had not remarried * he was asked if Ms. could have submitted those documents, to which he replied he know a and they went out for a few months * had no access to his personal information nor did he have any of her personal information, so he has no idea how this could have happened * the employee told him to out a DD Form 2656-6 to submit with a copy of his late wife’s death certificate * he requested the accrued monies to be returned to him b. DFAS letter in response to the applicant, dated 15 July 2016, which explains in pertinent part, that they received a request to add a new spouse to SBP along with a copy of a marriage certificate. They requested he provide a divorce decree or death certificate for . Enclosed with the letter was a written request which they alleged to receive from the applicant on 6 November 2006, wherein he informed DFAS his spouse had passed away and he remarried on 6 October 2005. He named Ms. as his new spouse, and attached a copy of a marriage certificate. c. Letter from the Office of the Clerk of the Circuit, dated 1 November 2016, that states they were asked to perform a thorough search of their records concerning the above-reference marriage record. They searched both digital and hardcopy records and failed to locate any marriage license application and/or officiant return for this couple within the county. In addition, the document includes an invalid license number for that time period and the format for the certificate does not match marriage certificates generated after the year 2000. Marriage certificates issued since 2000 no longer contain the parties’ social security numbers. The letter was signed by the Clerk of Circuit Court and notarized. 12. Please see applicable SBP laws below. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that full relief was warranted. The Board found the memorandum from the Office of the Clerk of the Circuit Court for Cecil County Maryland to be credible and agreed that the second marriage license may be fraudulent. The Board agreed that a preponderance of the evidence indicates that the applicant is not married to and did not remarry after the death of. Therefore, the Board found that correcting the applicant’s SBP election to reflect the death of his spouse and requesting coverage be suspended is warranted. 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 that the evidence presented was 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 properly requested that spousal coverage be discontinued after the death of his spouse on 2 April 2005 and his election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the repayment of any previously paid SBP premiums for the time there is no eligible beneficiary. 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 Army Board for Correction of Military Records (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. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Every member having a spouse and/or children, who retired/transfers (Reserve) on or after that date is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer. 3. Public Law 95-397, the SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in 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 If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay (costs for option C being the more expensive). Once a member elects either Options 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 – it automatically rolls into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. 4. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP. The spouse’s concurrence is required. No premiums will be refunded to those who opt to dis-enroll. Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay. 5. Title 10 U.S. Code (USC), section 1448, required notice to a spouse if a member elected not to participate in the SBP. The statute also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay. 6. Title 10, USC, section 1452, discusses the reductions in retired pay which are required to provide Survivor Benefit Plan annuities. It states, in pertinent part, that the reduction in retired pay prescribed shall not be applicable during any months in which there is no eligible spouse or former spouse beneficiary. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002964 6 1