BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20170010655 BOARD VOTE: ____x_____ ___x____ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20170010655 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 the applicant made a timely election to participate in the Reserve Component Survivor Benefit Plan, Option C, for spouse coverage. _____________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. BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20170010655 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 his military records to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP), Option C, for spouse coverage effective the date of his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 2. The applicant states: a. When he received his 20-year letter, his career guidance counselor informed him he would automatically be enrolled in Option C (immediate annuity upon death if before age 60). He was unaware of the regulation in effect stating that his non-election would result in Option A (no spousal coverage). This regulation was later changed effective 31 December 2000 by the 2001 Defense Authorization Act. b. He was told not to worry about spousal coverage based on his reenlistment because he was not being discharged. He mobilized in support of Operation Iraqi Freedom during the period January 2003 through July 2004. He was again told not to worry about spousal coverage by the Reenlistment Counselor at Fort Drum, NY, and that his wife was automatically covered under Option C. c. While reviewing his records at the Veterans Service Center recently, he was told his wife would not receive survivor benefits at the time of his death. He is currently 53 years of age. He understands that he can elect survivor benefits at age 60, but this gives him a 7-year gap in coverage for his spouse. As an Operation Iraqi Freedom veteran and a career Soldier with 25 years of exemplary service, he requests correction of his military records. 3. The applicant provides: * Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 21 October 1999 * marriage certificate * Headquarters, 77th U.S. Army Regional Readiness Command, Orders 04-349-00035, dated 14 December 2004 * letter from a Member of Congress, dated 6 July 2017 * DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate), dated 5 July 2017 CONSIDERATION OF EVIDENCE: 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 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. 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. The applicant was born on 11 April 1962. 3. Having prior active service in the Regular Army, he enlisted in the U.S. Army Reserve on 25 October 1985. 4. He married on 3 September 1988. 5. On 21 October 1999, he was issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter). Paragraph 4 of this memorandum pertains to the RCSBP and the DD Form 1883 (SBP Election Certificate) and informed him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883 or he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60. This paragraph specifically states, "If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits." 6. There is no evidence showing he made an RCSBP election. 7. His records show he was ordered to active duty in a mobilization status for Operation Enduring Freedom on 21 January 2003 for a period of 544 days. The available records do not contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of active duty service. 8. He was reassigned to the Retired Reserve effective 14 December 2004. 9. He provided a DD Form 2656-6, dated 5 July 2017, showing he elected to increase his existing level of spouse coverage upon remarriage based on full retired pay. REFERENCES: 1. Public Law 92-425, enacted 21 September 1972, established the SBP. 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. 2. Public Law 95-397, the 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 receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday, or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. 3. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters were issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C. The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-year letter. 4. The Servicemen's Group Life Insurance (SGLI) makes life insurance protection available to members of the Uniformed Services at a reasonable cost. All members of the Uniformed Services are automatically insured for the maximum coverage under SGLI. In 1995, the maximum SGLI benefit was $200,000.00. Coverage terminates 120 days after leaving active duty. The maximum coverage has increased through time; it was $250,000.00 in January 2002. Public Law 109-13, enacted on 11 May 2005 increased the SGLI to $400,000.00 at no additional cost for those who die from wounds, injuries, or illnesses that occur in a combat zone (as designated by the Secretary of Defense) or in combat-related activities (including training, hazardous conditions or situations involving an instrumentality of war). This increase was made retroactive for deaths that occurred on or after 7 October 2001 and was to have terminated on 30 September 2005. 5. The National Defense Authorization Act for Fiscal Year 2006 (Public Law  109-163, enacted 6 January 2006), increased the SGLI to $400,000.00 and removed the "combat" stipulations. It also provided for a $150,000.00 SGLI death gratuity payment to any service member who died while serving on active duty between 7 October 2001 and 11 May 2005 which effectively equalized the benefits for most Soldiers who died while serving on active duty whether death was related to combat action or not. DISCUSSION: 1. The applicant's contentions were carefully considered. 2. The evidence of record shows he was issued his Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 21 October 1999. This memorandum informed him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883 or he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60. Paragraph 4 of this memorandum specifically stated, "If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits." 3. There is no evidence showing he made an RCSBP election within the required 90 days of receipt of his 20-year letter. 4. Before the law was amended in October 2000, a Reserve member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he or she applied for retired pay and elect to participate in the standard SBP. Failure to elect an option resulted in the default election of option A to decline enrollment and choose at age 60 whether to elect SBP participation. 5. For clarification, the applicant's spouse was covered under the SGLI had he died while serving on active duty in 2003-2004. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170010655 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170010655 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2