ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 October 2019 DOCKET NUMBER: AR20180013337 APPLICANT REQUESTS: * in effect, change her deceased spouse’s (former service member (FSM)) survivor benefit plan (SBP from children only coverage to spouse coverage * personnel 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 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 in effect, she is applying for the FSM’s SBP annuity and needs his SBP coverage to be changed from children only to spouse as he was not married at the time of his original submission. They were married in 1999 and he failed to change the coverage to spouse. When she first applied for the SBP annuity her application was denied and told that she would have to wait until the 60th anniversary of his birth. She reapplied after the date of the 60th anniversary of his birth only to be told that her application was denied again, only this time it was because the statute of limitations had expired. She thinks that this determination is unjust as numerous persons have told her that she would have to apply after when he would have turned 60 years of age now only to be denied. 3. A review of the FSM’s service record shows: a. He enlisted in the Army National Guard (ARNG) on 25 February 1977. b. The facts and circumstances surrounding his military status as to extensions or reenlistments are not available for the Board to review for the period of 1983 to 1995. c. His DD Form 214 (Certificate of Release or Discharge) shows he was ordered to active duty on 30 November 1990. He was released from active duty on 22 April 1991 with an honorable characterization of service under provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 4 (Released from Active Duty). It also shows he completed 4 months and 23 days of active service. d. DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) dated 10 February 1995, he extended his enlistment for 3 years. e. State of memorandum dated 25 March 1997, he was notified of his eligibility for retired pay at age 60 (20 Year Letter). f. He was separated from the ARNG on 9 July 1997 with an honorable characterization of service under the provision of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26e (2) (Discharge for Acts or Patterns of Misconduct). His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows that he completed 20 years, 4 months, and 15 days of service. g. DA Form 1883 (Survivor Benefit Plan Election Certificate) dated 30 July 1997, he was not married, he elected children only for full retirement with option C (Immediate Coverage) for annuity to begin on the day after his death whether before or after age 60. h. He married X___ on 3 July 1999, which was filed in the probate court in . i. eath certificate shows that he was pronounced deceased on 29 May 2010. He was married and his spouse is shown as X___. 4. U.S. Army Human Resources Command (HRC) letter, dated 15 August 2018, denied the applicant’s application for SBP annuity based on the military service of the FSM. Citing Title 31 USC, section 3702 that claims against the government must be submitted within 6 years. The statute of limitations for her claim was 5 May 2016. 5. U.S. Army HRC letter dated 15 September 2010, informed the applicant that in order to determine eligibility she would be required to submit several documents to the nearest military installation that had identification card facilities. There is no evidence that the documents were submitted. 6. By law, a claim against the Government presented under this section must contain the signature and address of the claimant or an authorized representative. The claim must be received by the official responsible for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues. 7. By law, manner and time of election, an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the applicant’s election for children only coverage on 30 July 1997, and failing to submit any other changes to that election, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’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. 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. Title 10, USC, section 1448, establishes the Survivor Benefit Plan (SBP). As in effect at the time, participation by person marrying after retirement, etc. (a) election to participate in plan, a person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan; (b) manner and time of election, such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child. 3. Department of Defense Financial Management Regulation (DoD FMR) 7000.14.R, Chapter 43 (Survivor Benefit Plan (SBP) - Elections and Election Changes), 4306 Changes in Election and Coverage, subparagraph 430601 Later Acquired Spouse and/or Child, a member who acquires a new spouse and/or child after retirement must make an election within 1 year of the event. Subparagraph 430801 (Regular Recurring Open Enrollment), there are no regular recurring open enrollment periods. Open enrollment periods occur only when there are major changes to the SBP program and must be specifically prescribed my law. 4. Department of Defense Instruction (DoDI) 1332.42 (Survivor Annuity Program Administration), updates responsibilities and procedures for administering the Survivor Annuity Program, which is comprised of the Survivor Benefit Plan (SBP) and the Reserve Component Survivor Benefit Plan (RC-SBP). A member who does not have a spouse or dependent child when the member becomes eligible to participate and who later marries or acquires a dependent child may elect to participate in the Program by submitting a signed, written election that is received by the Secretary concerned within the 1 year period after acquiring the first spouse or dependent child. 5. Public Law 95-397, in the case of a person who would have become eligible for retired pay but for the fact that he died before becoming 60 years of age, the amount of the monthly retired pay for which the person would have been eligible. a. If he had been 60 years of age on the date of his death for purposes of an annuity to become effective on the day after his death in accordance with a designation made under Title 10 USC, section 1448(e). b. Upon becoming 60 years of age (if he had lived to that age) for purposes of an annuity to become effective on the 60th anniversary of his birth in accordance with a designation made under Title 10 USC, section 1448 (e). ABCMR Record of Proceedings (cont) AR20180013337 3 1