ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20170016483 APPLICANT REQUESTS: widow of a deceased former service member (FSM), the records of her deceased husband, a FSM, be corrected to show he timely made a Survivor Benefit Plan (SBP) election within 90 days of receiving his 20-Year Letter. She also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 (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’s widow states she is asking for correction of action she was selected for. At the time her late husband received his letter she was not informed or aware of any letter. She was separated from him in 2009 and was living in Nas__, TN. He never mentioned a letter at all. He cut her out of any dealing with the military at the time before his death. She was cut out and did not know about any election letter. She is a wife treated poorly. When they separated she did not know anything about SBP plan. She was still married to him just separated and moved out of state. She was married and never signed a waiver for SBP. She never saw anything after signing the SBP paperwork. After he got out of the Army National Guard until he was deceased. 3. A review of the FSM’s service records shows the following: a. The deceased FSM was born on # X___1959. He married X__ on 23 April 1992. b. Having had prior enlisted service he enlisted in the SCARNG on 1 February 1982. c. His NOE for retired pay at age 60 (twenty year letter) was issued on 15 June 1999. d. There is no evidence he submitted a SBP election within 90 days of his NOE. e. On 28 June 2002, he completed DD Form 1883 (Survivor Benefit Plan Election Certificate) in which he elected option C coverage for spouse and children. His spouse shows as X__ with a date of marriage as 23 April 1992. Both retiree and spouse signed the form. f. On 11 February 2005, NGB Form 22 (Report of Separation and Record of Service) shows he was transferred into the Retired Reserve. He served a total of 26 years of total service for retired pay. His ARNG current annual statement shows he completed 26 years of creditable service for retirement pay. g. On 30 April 2017, death certification shows the FSM was 57 when he died. It also shows his surviving spouse as X__ (X__). His marital status shows married but separated. h. Following his death someone submitted an application for retired pay benefits completed on 3 May 2017 for retired pay to begin on 30 April 2017. i. DD Form 2656-7 (Verification for Survivor Annuity) shows the widow applied for the SBP benefit on 3 May 2017. j. On 26 July 2017, the U.S. Army Human Resources Command wrote to the widow in reference to her eligibility for a Survivor Benefit annuity based on the military service of her late husband, and denied her request. Their letter states by law her late husband had 90 calendar days from the date he received his letter to submit a Survivor Benefit Election Certificate (DD form 1883). If an election was not made within the required 90 calendar days, he would not be entitled to Survivor Benefit coverage until he applied for retired pay at age 60. He died before age 60. 4. By regulation, AR 15-185 (ABCMR) 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. 5. By law, Title 10, U.S. Code 1448 provides 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. Spouse concurrence is required. 6. By law Title 10, U.S. Code 1448 also states retirees have a 1-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 for disenrollment. The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. The Board elected to grant relief because the DD Form 1883 (Survivor Benefit Plan Election Certificate) names the applicant as the beneficiary. The former service member made the election prior to his death. Based upon the clear and convincing intent of the FSM, the Board concluded that not granting relief would result in an injustice which warrants correction. 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 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 submitted his SBP election of spouse and children coverage on 16 June 1999 (immediately after receiving his notification of eligibility) and the request was received and processed by the appropriate office in a timely manner. Additionally, the Board recommended that that any and all premiums of such coverage be taken prior to any payments of coverage be made to the applicant. 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, 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 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. 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. 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. 3. 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. An election, once made, was irrevocable except in certain circumstances. This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. 4. 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. Title 10 USC, section 1448 was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount. 5. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a 1-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 disenroll. The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170016483 5 1