ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 July 2019 DOCKET NUMBER: AR20180016927 APPLICANT REQUESTS: correction of his records to add his spouse to his Survivor Benefit Plan (SBP) election. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Report of Separation from Active Duty) for the period ending 30 June 1974 * Marriage License/Certificate, State of Georgia, County of Fulton, dated 9 July 2015 * Defense Finance and Accounting Service (DFAS)-Cleveland Center 7220/148 (Retiree Account Statement), dated 30 November 2018 * Self-authored Letter, dated 1 December 2018 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, 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 states: * he would like to have his spouse included as a beneficiary of his SBP for receipt of ongoing retired pay in the event of his death * he retired from the U.S. Army and began receiving retired pay in July 2004 * he was single and had two adult children at that time * he married in May 2015 and he understood his wife would continue to automatically receive his survivor retirement benefits (retiree payments) in the event of his death * he contacted DFAS in August 2018 and learned that his wife was not covered under his SBP * he was informed that he had 13 months from the date of his marriage to add his wife as a beneficiary * since the 13-month deadline had expired, he was advised to appeal to the ABCMR to have her included * he was also advised that there would be a significant lump-sum payment to make up for the premiums not previously collected to cover his change in status if the appeal were accepted * he agreed to pay the lump-sum premiums * he appears to have made an error in understanding the process used to change his SBP election and he appeals to the ABCMR for a change in his status 3. He was born on XX July 1944. 4. His records contain a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 31 December 1992. He was advised that: You are entitled to participate in the Reserve Component Survivor Benefit Plan (RC-SBP) established by Public Law 95-397. This plan enables you to provide an annuity for your spouse, and other eligible beneficiaries. BY LAW, YOU HAVE ONLY 90 CALENDAR DAYS FROM THE DATE YOU RECEIVE THIS LETTER TO SUBMIT YOUR SURVIVOR BENEFIT PLAN ELECTION CERTIFICATE (DD FORM 1883). IF YOU DO NOT SUBMIT YOUR ELECTION WITHIN 90 CALENDAR DAYS, YOU WILL NOT BE ALLOWED TO OBTAIN SURVIVOR BENEFIT COVERAGE UNTIL YOU APPLY FOR RETIRED PAY AT AGE 60. IF YOU DO NOT ELECT COVERAGE AND SHOULD DIE BEFORE AGE 60, THERE WILL BE NO BENEFITS FOR YOUR SURVIVORS. More detailed information concerning participation in the Reserve Component Survivor Benefit Plan (RC-SBP) and blank DD Form 1883 are enclosed. 5. His records contain a DD Form 1883 (SBP Election Certificate), dated 27 April 1993, showing in: a. Section II (Marital, Dependency, and Election Status): (1) he indicated he was not married in item 6, (2) he indicated he has dependent children in item 7, (3) he indicated he desired children-only coverage in item 8c, and (4) he elected to provide an annuity based on the full amount of his retired pay under option C (Immediate Coverage), in item 9; and b. Section III (Family Information), he named his natural daughters X X. X and X X. X in item 15a. 6. His DD Form 108 (Application for Retired Pay Benefits), dated 1 April 2004, shows he applied for retired pay at age 60. 7. His DD Form 2656 (Data for Payment of Retired Personnel), dated 1 April 2004, shows in: a. Section V (Designation of Beneficiaries for Unpaid Retired Pay), item 13, he named his daughter, X X. X and designated a share of 100 percent; b. Section VI (Federal Income Tax Withholding Information), item 14 (Marital Status), he indicated "Single"; c. Section IX (SBP Election): (1) item 26c, he elected coverage for children only and indicated he did not have a spouse; (2) item 27 (Level of Coverage), he elected coverage based on full gross pay without supplemental SBP; and (3) item 28 (Insurable Interest Beneficiary) (also known as Natural Interest Person), he named his daughter X X. X . 8. U.S. Army Reserve Personnel Command Orders P06-485417, dated 28 June 2004, retired and placed him on the Retired List effective 2 July 2004. 9. He reached age 60 on XX July 2004. 10. He provided a copy of his marriage certificate, dated 9 July 2015, showing he married X X. X on 15 May 2015. 11. The letter from DFAS Retired and Annuitant Pay, dated 29 October 2018, states his application for SBP received on 2 July 2018 was invalid. Their records show he did not have children when he signed up for SBP. DFAS cannot change his election without first having orders from his branch of service. 12. His records contain no evidence showing he terminated his SBP NIP coverage. 13. His records contain no evidence showing he submitted an SBP change election within 1 year of his marriage. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that full relief was warranted. In 1993, in preparation for retirement, he elected child-only coverage of SBP because he was not married at the time. In May 2015, the applicant remarried, but was unaware of the rule to elect SBP coverage within one year, thinking his wife would automatically be covered since he had earlier elected child coverage. The Board found the applicant’s statement compelling that had he known of the option to add spousal coverage within one year of marriage, the applicant would have made the election. In this case, the board found that the applicant always intended to cover his dependents, as he had chosen child coverage at the time of his retirement. Therefore, the Board found sufficient evidence to grant relief. 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 elected his SBP election to cover his spouse within one year of 15 May 2015 (the date of his marriage to his spouse) and the request was received and processed by the appropriate office in a timely manner. X CHAIRPERSON 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. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Public Law 92-425, the SBP, enacted 21 September 1972, 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. A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member. The term "dependent child" means a person who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self support because of a mental or physical incapacity existing before the person's 18th birthday, or is the child of a person to whom the plan applies, including an adopting child, a step or foster child, or a recognized natural child who lived with that person in a regular parent-child relationship. Premiums for insurable interest coverage are generally higher than for any other category of coverage. 3. Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who 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, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Once a member elects either option B or 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 RCSBP and RCSBP coverage automatically converts to SBP coverage upon retirement. 3. Public Law 103-337, enacted 5 October 1994, allowed SBP insurable interest participants whose beneficiary is not their former spouse to voluntarily terminate their participation in the SBP. Any such termination shall be made by a participant by the submission to the Secretary concerned of a written request to discontinue participation in the SBP. Such participation shall be discontinued effective on the first day of the first month following the month in which the request is received. Once participation is discontinued, benefits may not be paid in conjunction with the earlier participation in the SBP and premiums paid may not be refunded. 4. Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and/or 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. //NOTHING FOLLOWS//