ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20180008211 APPLICANT REQUESTS: she be paid a spouse annuity under the Survivor Benefit Plan (SBP) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Email regarding her husband’s retired pay packet * NGB Form 23B (Army National Guard Retirement Points History Statement) * NGB Form 22 (Report of Separation and Record of Service) * DD Form 1883 (SBP Election Certificate) * DD Form 2656 (Data for Payment of Retired Personnel) * DD Form 2656-6 (SBP Election Change Certificate) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Birth Certificate * Death Certificate * Marriage License * Bank information * Human Resources Command (HRC) denial letter FACTS: 1. The applicant states that SBP was not provided to her husband upon retirement. Per Title 10, all survivors should be granted the entitlement based on the member’s honorable service to the military and given the election to choose SBP or decline. Her husband was not given this opportunity. He was not informed of the election of SBP and due to the neglect of the unit a failure to make an election has left the family without an annuity after her husband served on active duty for over six years and retired from the Army National Guard with over twenty-one years of service. His effective date of retirement was 1 October 1998. 2. The applicant provides: a. A State Board of Health “Certificate of Live Birth” showing her husband was born on . b. A DD Form 214, dated 28 February 1983, showing applicant’s husband was honorably discharged from the Regular Army at the expiration of his term of service. c. An NGB Form 22, dated 1 October 1998, showing he was honorably discharged and transferred to the Retired Reserve effective that date. d. A DD Form 1883, dated 28 October 1998, showing applicant’s future husband was unmarried at the time and elected full immediate child-only Reserve Component (RC) SBP coverage for the benefit of his two minor children. e. A State “Marriage License” showing applicant and her husband married on 21 December 1998. f. A DD Form 2656-6, dated 26 September 2017, showing applicant’s husband attempted to change his RCSBP/SBP coverage to spouse coverage. g. A DD Form 2656, dated 30 November 2017, showing applicant’s husband attempted to elect spouse only coverage in conjunction with his submission of his retirement packet. h. A Department of Health and Environment “Certificate of Death” showing applicant’s husband died on . i. An NGB Form 23B, dated 11 January 2018, showing her husband had over twenty-years of creditable service for retired pay. j. An email, dated 11 January 2018, presumably from her husband’s former unit transmitting his retired pay packet to HRC for processing. k. Two direct-deposit forms containing details regarding her husband’s checking account and applicant’s savings account. l. A letter from HRC, dated 26 April 2018, denying applicant’s request for an SBP spouse annuity based on her husband’s failure to add her to his coverage within one year of their marriage. 3. A review of the Former Serve Member’s service record shows: a. He enlisted in the U.S Army Reserve on 27 July 1976 and the Regular Army on 2 August 1976 ultimately continuing his service in the Kansas Army National Guard (KSARNG). b. He was honorably transferred to the Retired Reserve on 1 October 1998. c. He was issued his “Notification of Eligibility for Retired Pay at Age 60” (aka 20-Year Letter) on 15 October 1998. d. On 28 October 1998, he elected full immediate child-only coverage under the Reserve Component Survivor Benefit Plan. e. His record is void of evidence that he attempted to add applicant, a post-retirement spouse, to his existing coverage within one year of their 21 December 1998 marriage or during any open enrollment period. 4. By law, Soldiers who complete twenty or more years of service are issued a 20-Year Letter informing them of their retirement eligibility. They are offered the opportunity to enroll in the Reserve Component Survivor Benefit Plan (RCSBP). The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt of their letter. A Soldier could choose to delay making an election until reaching age 60, elect coverage that would pay an SBP annuity effective on what would have been his 60th birthday in the event he died before that time, or elect coverage that would pay an annuity immediately upon his death if before age sixty. 5. Coverage under RCSBP/SBP may be elected for a spouse acquired subsequent to retirement eligibility spouse, if such election is made within one year of marriage. 6. Periodically, Congress passes laws that establish Open Seasons which allow RCSBP/SBP enrollment or changes to participation level. Open Seasons are extensively publicized in Army Echoes. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record of the applicant failing to show that the FSM elected coverage within one year of marriage, nor when requesting retired pay upon turning 60, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the FSM’s SBP coverage. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the Survivor Benefit Plan (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 Once a member elects either option B or option 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 the Reserve Component Survivor Benefit Plan (RCSBP) - the options automatically roll 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. 2. Title 10 U.S. Code, section 1148(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. 3. Periodically, Congress passes laws that establish Open Seasons, which allow RCSBP/SBP enrollment for those previously not fully participating in the program or allows participating members to make changes to their coverage amounts. The last such Open Season ran from 1 October 2005 through 30 September 2006. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20180008211 4 1