ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 October 2019 DOCKET NUMBER: AR20180008750 APPLICANT REQUESTS: change her deceased spouse’s (former service member (FSM) survivor benefit plan (SBP) from no coverage to spouse coverage. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * statement signed by the applicant 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 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 she would like to have the FSM’s SBP changed from no coverage to spouse coverage. After numerous attempts and unanswered telephone calls, she was finally told by Mr. X__ at Human Resources Command (HRC) the FSM, who had not reached the age of 60 before his death, had not elected a plan for the SBP. She believes that being 90 days shy of 60 years of age is a small price to pay for someone that gave so much of his life to the protection of his country. She deserves the very best care ever from the FSM that gave many weekends and time away from his family to please so many people. 3. A review of the FSM service records shows: a. He was inducted into the Army of the United States (AUS) on 18 May 1970. b. He was released from the AUS on 25 January 1972 with an honorable characterization of service under provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-3 (Separation for Convenience of the Government) and assigned to the United States Army Reserve (USAR) Control Group (Annual Training). His DD Form 214 (Report of Separation) shows that he completed 1 year, 8 months and 8 days of active service. c. Reserve Components Personnel and Administration Center Order Number 04-1065232 dated 28 April 1976, discharged the FSM on 1 May 1976 under provisions of AR 135-178 (Reserve Components Separation of Enlisted Personnel), paragraph 3-1 (Expiration of term of service (ETS)). d. He married DJR__ on 2 October 1976. e. He enlisted in the Army National Guard (ARNG) of NC on 13 September 1978. f. The facts and circumstances surrounding the FSM service regarding any extension, reenlistment, or discharge from the ARNG is not available for the Board to review for the time period of 13 October 1979 to 11 September 1992. g. DA Form 4836 (Oath of Extension of Enlistment or Reenlistment dated 20 August 1992 for 6 months. h. State of NC memorandum dated 16 October 1997, notified the FSM of his eligibility for retired pay at age 60 (20 Year Letter). i. He was released from the ARNG on 31 December 1997 with an honorable characterization of service under provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26u (Transfer to Retired Reserve). His National Guard Bureau (NBG) Form 22 (Report of Separation and Record of Service) shows that he completed 25 years, 8 months, and 18 days of service. 4. Information obtained from Defense Finance and Accounting Service Retirement and Annuity Branch shows that the applicant received a letter from HRC regarding her inquiry concerning eligibility for SBP based on the service of the FSM on 16 April 2013. She was notified that she was not entitled to any benefits as the FSM did not submit a DD Form 1883 (SBP Election Certificate) within 90 days of receiving his 20 year letter. If he had submitted the DD Form 1883, he would not be entitled to SBP coverage until he applied for retired pay at age 60. According to HRC records he never made an election nor applied for retired pay. 5. By law, a person who is eligible to participate in the Plan who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence, if required not to participate in the Plan before the first day for which he is eligible for that pay. 6. 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 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. By not submitting an RCSBP election when he/she received his/her 20-Year Letter, a Reserve Component Soldier effectively deferred his/her election until age 60 when he/she applies for retired pay. 7. Although the law has been changed to make RCSBP spouse coverage immediate and automatic unless a spouse concurs with a declination or delay in coverage, Congress specifically declared the change effective beginning with those 20-Year Letters issued after 1 January 2001. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the failure of the FSM to submit an SBP election at the time of his retirement, the Board concluded there was no error or injustice which would warrant making a change to the applicant’s military service record. 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. 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 Army Board for Correction of Military Records (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. 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 3. Title 10 USC, section 1448, the program established shall be known as the Survivor Benefit Plan (SBP). The following persons are eligible to participate in the Plan: persons entitled to retired pay and persons who would be eligible for reserve component retired pay but for the fact that they are under 60 years of age. A person who is eligible to participate in the Plan and is married or has a dependent child when he is notified that he has completed the years of service required for eligibility for reserve component retired pay, unless the person elects (with his spouse’s concurrence, if required) not to participate in the Plan before the end of the 90-day period beginning on the date on which he receives that notification. A person who elects not to participate in the Plan remains eligible, upon reaching 60 years of age and otherwise becoming entitled to retired pay, to participate in the Plan. 4. Title 10 USC, section 1450, effective as of the first day after the death of a person to whom section 1448 of this title applies, a monthly annuity under section 1451 of this title shall be paid to the person’s beneficiaries under the Plan, as follows: * surviving or former spouse * surviving children * dependent children, the dependent children in equal * special needs trusts for sole benefit of certain children, supplemental or special needs trust established for the sole benefit of a dependent child considered disabled who is incapable of self-support because of mental or physical incapacity * natural person designated under “insurable interest” coverage 5. Title 10 USC, section 1451, reserve component annuity, in the case of a reserve component annuity provided to a beneficiary the monthly annuity payable to the beneficiary shall be the amount equal to a percentage of the retired pay of the person who elected to provide the annuity after the reduction in such that is less than 55 percent; and is determined under subsection (f) of this title. Computation of when participant dies before age 60, a person: * who provides an annuity that is determined in accordance with that paragraph * who dies before becoming 60 years of age * who at the time of death is otherwise entitled to retired pay, shall be considered to have been entitled to retired pay at the time of death. The retired pay of such person for the purposes of such paragraph shall be computed on the basis of the rates of basic pay in effect on the date on which the annuity provided by such person is to become effective in accordance with the designation of such person under section 1448(e) of this title. ABCMR Record of Proceedings (cont) AR20180008750 3 1