IN THE CASE OF: BOARD DATE: 16 July 2020 DOCKET NUMBER: AR20170004003 APPLICANT REQUESTS: The applicant, the Former Service Members (FSM) spouse requests: * correction of the FSM’s record to show her as the Reserve Component Survivor Benefit Plan (RCSBP) annuitant * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60, dated 21 November 2002 * Certification of marriage license record, dated 12 December 2002 * Memorandum, Subject: RCSBP Election, dated 7 March 2003 * DD Form 2656-5 (RCSBP Election Certificate), dated 20 January 2005 * Death certificate, dated 18 November 2016 * ARNG current annual statement, dated 18 November 2016 * Pennsylvania Army National Guard (PAARNG) letter, dated 8 January 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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: a. She and the FSM were married on 8 December 2002 just 2 weeks after he received his 20 years of creditable service for retirement on 21 November 2002. He was under the impression that they were covered and that survivor benefits were in order given the date of their marriage. b. In December of 2004 the FSM was advised of his impending deployment to Iraq, in January 2005. Together they attended a meeting at the unit for departing families, where all his paper work was reviewed and updated prior to his departure. During that meeting they were advised that all paper work was in proper order, this was a great relief to both of them given his upcoming assignment. The fact that he would be leaving not only her but their 18-month old son in addition they had just found out that week that they were being blessed with another child just the prior week. The FSM was concerned he would not be with her throughout this pregnancy and could not be there to support his family, knowing should anything happen his family would be taken care of. c. The attached documentation shows that both the FSM and her signed and completed his DD Form 2656-5 to change his SBP to option C (Immediate Annuity to Spouse or Children) on 20 January 2005 prior to his deployment to Iraq, again they were advised everything was in proper order. The FSM ended his military career on 29 January 2007 and was retired/discharged under honorable conditions. It was shortly after his return from Iraq that his mental and physical well-being began to take a turn for the worse. He was eventually granted 100 percent disability and an unemployable rating from the Veterans Affairs, during his illness, knowing that time with his family was coming to an end the FSM was concerned that all the paper work for benefits were in order and that his family would have some assistance financially with his survivor benefits. They had several discussions regarding his retirement benefits from the military for which he was under the full impression would be available to her and his children should something happen to him based on the DD Form 2656-5 completed on 20 January 2005. It is with unbelievable sadness the FSM’s life ended at only 55 years of age, he was an outstanding father to their children, her best friend and the best husband anyone could ever have, and his main focus was his family and making sure they were provided for. d. After the FSM’s passing, she contacted the PAARNG retirement services center and was advised that the FSM had no survivor benefits based on no updated DD Form 2656-5 received prior to 7 December 2003. 3. A review of the FSM’s official records shows the following: a. On 4 November 1992, having had prior enlisted service in the U.S. Air Force, the FSM enlisted in the ARNG. b. On 8 December 2002, the FSM married c. On 7 March 2003, by memorandum, the FSM was notified by the Adjutant General’s Office, Fort Indiantown Gap, PA, of a non-receipt of DD Form 2656-5 within 90 days of receipt of his Notification of Eligibility for Retired Pay at Age 60. The memorandum also stated, the 2001 authorization act changed the RCSBP enrollment procedure, meaning that Soldiers issued their 20-Year Letter after 31 December 2000 are considered automatically enrolled in the RCSBP under Option "C" immediate annuity, (spouse only coverage). The Standard Installation/Division Personnel System (SIDPERS) data base indicates that you are single/or divorced. Therefore, you are not subject to the Option "C" or immediate annuity clause and SIDPERS has been updated to reflect Option "A", meaning that you defer in making an election until age 60, or if your marital status changes you can change this election at that time. d. On 9 July 2003, the applicant completed DD Form 1172 (Application for Uniformed Services Identification Card) indicating in section 2 (Dependent Information) he was married on 8 December 2002. e. On 28 June 2005 – 12 June 2006, the applicant served in Kuwait/Iraq in support of Operation Iraqi Freedom. f. The applicant’s records are void of a 20-Year letter, likewise, it is void of a completed DD Form 2656-5. 4. The applicant provides: a. Notification of Eligibility for Retired Pay at Age 60 issued by the Adjutant General’s Office notifying the FSM he had completed the required years of service and was eligible for retired pay upon application. It is silent in regards to RCSBP. b. DD Form 2656-5 showing the FSM indicated he was married on 8 December 2002, he had 3 dependent children that were not disabled, and he was electing “Option C” immediate annuity for spouse and children. He endorsed this form along with a witness. c. Death certificate showing the FSM died on 18 November 2016 and his spouse was the informant. d. ARNG current annual statement showing the FSM had 24 years, 5 months, and 25 days of creditable service for retired pay. e. PAARNG letter that states: (1) Notice of Eligibility (20 Year Letter) was generated for the FSM on 21 November 2002 by the PAARNG. Well after the 2001 Authorization Act that changed the enrollment procedure to an automatic election for when an election is not made within 90 days. While gathering the documents required for application it was noticed the FSM was married on 8 December 2002, 18 days after an automatic election would have applied, but within the 90-day window to make an election, there by excluding him from an automatic election. (2) On 7 March 2003, a memorandum was generated by the State encouraging the FSM to complete the DD Form 2656-5 as soon as possible. This memorandum was located by their office in his Interactive Personnel Electronics Records Management System record. They do not know if this memorandum made it to Headquarters and Headquarters Company, 55th Brigade or the FSM. (3) Based off the above facts, according to law, the FSM would have one year from his date of marriage to elect survivor benefits by completing a DD Form 2656-6. They do not have the documentation that reflects this was completed or any information the FSM understood the need to complete this. They do have documentation that he completed a DD Form 2656-5 on 21 January 2005 with an assumption on his and his unit's behalf that he was updating his information to his already existing survivor benefits. 5. See applicable regulations and SBP laws below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the Former Service Member’s (FSM) record of service, the 20-year letter, the date of their marriage, a completed DD Form 1172, the DD Form 2656-5 and the date of the FSM’s retirement. The Board considered the letter from the PAARNG. Based on a preponderance of evidence, the Board determined that the FSM was eligible to and intended to provide the SBP annuity to his spouse; the record should be corrected to show that he did. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 as follows: - Show that the FSM completed a DD Form 2656-5 (RCSBP Election Certificate) on 8 January 2003, electing Option C, Spouse Coverage and showing his Spouse as beneficiary; - The FSM’s election was submitted, accepted and processed by the appropriate authority, and; - Show that the FSM’s spouse is eligible for the RCSBP annuity and provide her the annuity payments due her as a result of this correction. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to a personal appearance. 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. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Public Law 95-397, the Reserve Component SBP (RCSBP), enacted 30 September 1978, provided a way for those who had 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 receives an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday * C: elect that a beneficiary receives an annuity immediately upon their death if before age 60 3. Department of Defense Financial Management Regulation section 5404 (Election to Participate) states any member who is notified of his or her completion of the years of service required for retired pay eligibility for non-regular retirement may elect to participate in the RCSBP before the end of the 90-day period. A member who is married or has a dependent child, and who receives notice of eligibility for retired pay, after 1 January 2001, is automatically an immediate participant in RCSBP unless the member elects (with spousal concurrence, if required) not to participate or to defer the decision or delay coverage before the end of the 90-day period. 4. Army Regulation 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004003 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1