ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20180016389 APPLICANT REQUESTS: * Correction of his record to show he added his spouse and children to the Survivor Benefit Plan (SBP) * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (20- Year Letter), dated 9 December 1996 * DD Form 1883 (SBP Election Certificate), dated 19 January 1997 * Marriage Certificate, dated 25 February 2005 * DD Form 2656-6 (SBP Election Change Certificate), dated 24 May 2007 * DD Form 108 (Application for Retired Pay Benefits), dated 8 April 2014 * DD Form 2656 (Date for Payment of Retired Personnel), dated 9 April 2014 * Orders Number C03-592118, dated 9 March 2015 * U.S. Army Human Resources Command (HRC) letter, dated 9 March 2015 * HRC Form 249-E (Chronological Statement of Retirement Points), dated 13 March 2015 * Retiree account statement, dated 1 May 2015 * Defense Finance and Accounting Service (DFAS) letter, dated 6 August 2018 * Applicant letter to DFAS, dated 1 September 2018 FACTS: 1. The applicant states, as reflected in his SBP coverage selection 20 years earlier when he was single, he was not informed he would need to change his selection within one year of marriage. Since he was married on 17 May 2004, and in the grey-area retirement area, it seems prudent SBP coverage would be extended to his spouse and children as selected when he applied for retired pay. 2. A review of the applicant’s service records show the following on: * 15 June 1989 – having had prior enlisted service, the applicant was appointed as a Reserve warrant officer and executed an oath of office * 9 December 1996 – the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) informing him he was eligible for retired pay at age 60 upon application * 19 January 1997 – the applicant completed DD Form 1883 showing the following in: * section 2 (Marital, Dependency, and Election Status) * item 6: Are you married “No” * item 7: Do you have dependent children “Yes” * item 8: he elected “Children Only” coverage * section 3 (Family Information) he listed Mr. X- X- Jr. and Mr. X- X- (7 and 5 years of age at the time the form was completed) * 17 May 2004 – the applicant married Ms. X- X- * 24 May 2007 – the applicant completed DD Form 2656-6 showing he requested a change to his SBP coverage based on his marriage and requested spouse and children coverage, he added Mr. X- W- and Ms. X- X- (5 and 8 years of age at the time of application) * 8 April 2014 – the applicant completed DD Form 108 showing he applied for retirement * 9 April 2014 – the applicant completed DD Form 2656 showing the following in: * section 5 (Designation of Beneficiaries for Unpaid Retired Pay) he listed Ms. C- W- * section 8 (Dependency Information): * item 22 (Spouse), he indicated he and Ms. X- X- were married on 17 May 2004 * item 25 (Dependent Children) he listed Ms. X- X- and Mr. X- X- (15 and 12 years of age at the time of application) they were not disabled * section 9 (SBP Election) he elected spouse and children coverage * he, his spouse and a witness endorsed this form * 9 March 2015 – Orders Number C03-592118, issued by HRC retired the applicant and placed him on the Retired list 3. The applicant provides: a. HRC letter showing his retirement was approved. b. AHRC Form 249-E showing he had 34 years and 1 day of qualifying service for retirement. c. Retiree accounts statements showing spouse only coverage premiums were being deducted from his retired pay. d. DFAS letter to the applicant, wherein a DFAS official informed him they were unable to process his request to add his spouse to the SBP because he had to add his spouse within one year of marriage. e. Applicant’s letter to DFAS that states in pertinent part, it was inconceivable to him to believe that he should have made this election more than 15 years ago. Further, as noted on his retiree account statement dated 31 March and 22 April 2015, SBP was acknowledged for his spouse with payments of $169.26 respectively. However, his spouse coverage was changed as documented. In light of the error, his SBP coverage for his spouse should resume and retroactive payment of SBP coverage costs should be waived. Furthermore, when he received his 20-Year retirement letter in 1996, he was not married. Acknowledging his 20-year retirement letter and ascertainment of retirement pay when he turned 60 years of age, he selected children only because he was not married and he had children. Later, on 17 May 2004, he was married to his spouse, Ms. C- W-. Therefore, although he applied for retirement pay and coverage of SBP for his wife and children as indicated, he was now requesting SBP coverage for his spouse be resumed and that due to your error to discontinue SBP coverage for his spouse, please afford him any applicable mitigation to ensue SBP coverage as intended. 4. See SBP laws under REFERENCES below. 5. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that partial relief was warranted. 1. Regarding the applicant’s request for spousal coverage of SBP, in 1996, when the applicant got his 20-year letter, he elected child-only coverage of SBP because he was not married at the time. In 2004, the applicant remarried, but was unaware of the rule to elect SBP coverage within one year, but did so in 2007. In 2015, upon reaching aged 60 he began drawing retired pay. His Retiree Account Statements indicated that spousal SBP payments were withdrawn. In 2018, DFAS sent the applicant a letter stating they could not process his SBP request for spouse coverage. In this case, the board found that the applicant always intended to cover his dependents and did so well before withdrawing retirement pay, which is when his payment for coverage began. Therefore, the Board found sufficient evidence to grant relief. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 1. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant elected his SBP election to cover his spouse within one year of 17 May 2004 (his marriage date) and the request was received and processed by the appropriate office in a timely manner. 2. The Board recommends no personal appearance. 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. Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. 2. Title 10, United States Code (USC), 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. 3. AR 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 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. //NOTHING FOLLOWS//