ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20170014894 APPLICANT REQUESTS: in effect, correction of her deceased husband's, a former service member (FSM), records to show she is entitled to receipt of his Survivor Benefit Plan (SBP) annuity. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Alabama Certificate of Marriage, dated 10 May 2010 * Self-authored Letter, undated * FSM's Last Will and Testament, dated 15 September 2015 * My Army Benefits Article, Army Echoes, undated * FSM's Alabama Center for Health Statistics Certificate of Death, dated 30 May 2016 * Letter, Defense Finance and Accounting Service (DFAS), Retired and Annuitant Pay, dated 22 August 2016 * two Certified Mail Receipts, U.S. Postal Service, dated 1 November 2016 and 7 November 2016 * Reserve Retirement Checklist, dated 8 November 2016 * Self-authored Cover Letter, dated 24 July 2017 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S Code, 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 the FSM took her to Anniston Army Depot on or about 1 July 2010 to completely enroll her in what they thought was all of his military benefits. She does not know why she was not added to his pension as a natural interest person. The FSM retired on or about 7 January 2010. 3. The FSM was born on XX November 1934. 4. The FSM's complete military service records are not available for review. His available records show he enlisted in the Army National Guard on 21 February 1956. 5. The FSM's available records do not contain a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 6. The FSM's DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 1 October 1979, shows in: a. Section II (Marital, Dependency, and Election Status): (1) he indicated he was not married and did not have dependent children in item 6 and (2) he elected to provide an annuity based on the full amount of his retired pay under option C (Immediate Coverage) in item 9; b. Section III (Family Information), the entries "None" or "NA" in item 10; and c. Section IV (Insurable Interest Coverage), he named his mother, M____ B. H____, in item 17. 7. The FSM's DA Form 4240 (Data for Payment of Retired Army Personnel), dated 16 May 1994, shows in: a. Part II (Tax Status – Withholding Exemptions), he indicated he was single and had no exemptions in item 10; b. Part IV (Designation of Beneficiary), he named his mother, M____ B____ H____, as the beneficiary of 100 percent of his final retired pay in item 12; and c. Part V (Survivor Benefit Plan Election), he noted "SEE ATTACHED DD FORM 1883" in item 16. 8. U.S. Army Reserve Personnel Center Orders P-09-404889, dated 9 September 1994, retired the FSM and placed him on the Retired List effective 12 November 1994. 9. The FSM reached age 60 on XX November 1994. 10. The applicant and the FSM married on 8 May 2010. 11. The FSM's available records do not contain evidence showing he elected SBP spouse coverage within 1 year of his marriage to the applicant. 12. The FSM died on 30 May 2016. His death certificate shows he was married to the applicant at the time of his death. 13. The letter to the applicant from the Defense Finance and Accounting Service Retired and Annuitant Pay, dated 22 August 2016, states the applicant's application for the SBP annuity was denied. Their records show the FSM did not elect to participate in SBP. The natural person with an insurable interest beneficiary upon whom the initial election was based is no longer an eligible beneficiary because the FSM voluntarily elected to terminate/discontinue insurable interest coverage under the provisions of Title 10, U.S. Code, section 1448(B)(1)(B). Natural interest person coverage was terminated in August 1995 and a refund was issued in February 1996. 14. The undated letter from the applicant states: a. Her late husband, the FSM, served in the Army National Guard for 26 years. He passed away on 30 May 2016. They were married on 8 May 2010. He was an only child so he named his mother as a natural interest person beneficiary. He removed his mother as a natural interest person beneficiary in 1995 as she was in a nursing home. His mother died in 1999. b. When she married the FSM, he took her to the military installation in Anniston, AL. The FSM thought they had changed his election and named her as his beneficiary. She learned after his death that she did not qualify for 55 percent of his retired pay. Her income has been cut to less than half. She is 74 years old and she needs help in this matter. The FSM was the most loving and caring person she has ever known and he had always has taken care of her. She now has to live without him and without his income for which he served for 26 years. She knows she will have to pay back premiums and she will gladly do so. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and the evidence in the records. The Board discussed the Soldier’s previous SBP election (natural interest beneficiary) that was subsequently removed, the lack of evidence that the Soldier intended to or took action to add his spouse as a beneficiary within one year of marriage and reviewed the Soldier’s Will. The Board majority found that the preponderance of evidence did support creating an SBP election on behalf of the deceased Soldier; one member recommended no relief. 2. After reviewing the application and all supporting documents, the Board majority found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X 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 the Survivor Benefit Plan (SBP), naming his spouse as beneficiary, within one year of his 8 May 2010 marriage and his election was received and processed in a timely manner by the appropriate authority. His spouse is entitled to the benefit less any premiums required for this coverage. 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, 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 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. 2. Title 10, U.S. Code, 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. ABCMR Record of Proceedings (cont) AR20170014894 4 1