ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20190000290 APPLICANT REQUESTS: to receive the former service member's (FSM) Reserve Component Survivors Benefit Plan (RCSBP). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * FSM's Ohio Department of Health Certificate of Death * NGB Form 22 (Departments of the Army and the Air Force National Guard Bureau Report of Separation and Record of Service) * FSM's 20 year letter * DD Form 2656 (Data for Payment of Retired Personnel) * DD Form 93 (Record of Emergency Data) * Standard Form 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services) * FSM's discharge orders * letter from U.S. Representative * marriage certificate * FSM's Certificate of Service FACTS: 1. The applicant did not file within the time frame provided in the statute of limitations; however, the Army Board for Correction of Military Records has elected to conduct a substantive review of this case and has determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant, the spouse of the FSM, states: * she believes she should be receiving SBP from the FSM's Army National Guard (ARNG) retirement * she has been unsuccessful in the 3 years since his death finding a course of action that will correct the error * the FSM completed his DD Form 2656 to name the applicant as his surviving spouse on 30 October 2001 * the FSM submitted the form in person at the ARNG Armory in Cincinnati, Ohio * the form was accepted and signed by two witnesses at the armory * neither the FSM nor the applicant received notification the spousal coverage was not valid until the applicant applied for benefits after the FSM's death 3. The FSM received his 20 year letter on 13 June 1986 notifying him he would be eligible for retired pay at the age of 60. The FSM signed a DD Form 1883 (Survivor Benefit Plan Election Certificate) on 20 August 1986 stating he was not married and elected coverage for his children only. 4. The applicant and the FSM were legally married on 5 January 1963. The applicant's service records contain a divorce decree dissolving the marriage between the applicant and the FSM on 14 January 1986 – prior to receipt of the 20-year letter. 5. The applicant provides a DD Form 93 dated 7 March 1982 listing her as the FSM's spouse. The applicant's record contains a DD Form 93 dated 3 December 1988 listing himself as divorced. 6. The FSM was discharged from the ARNG on 1 February 1989. He received Orders P-11-307608 dated 30 November 2001 stating he was placed on the retired list effective 16 March 2001. 7. An acknowledgment from Judge W_ W_ reflects the applicant and FSM remarried on 10 November 2000. The FSM completed a DD Form 2656 on 30 October 2001, within one year of his remarriage to the applicant, electing SBP coverage for his spouse only and listed the applicant as his beneficiary. The FSM died on 27 February 2015. The applicant is listed as the FSM’s spouse on the death certificate. The applicant applied for unpaid compensation for the FSM; however, only the front page was provided and it does not contain the applicant's signature. 8. The applicant provides a letter from a US Representative regarding an inquiry with Defense Finance and Accounting Services (DFAS). The letter states the US Representative received correspondence from DFAS. The applicant did not provide the DFAS correspondence for the Board's review. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the Soldier’s 20-year letter, the marriage certificate, the Survivor Benefit Plan Election Certificate (20 August 1986) for child only coverage, the Judge’s acknowledgment of the Soldier and the applicant’s remarriage on 10 November 2000, the Soldier’s signed application for retired pay (30 October 2001) that reflects information specific to Survivor Benefit Plan elections and the certificate of death for the Soldier in 2015. The Board determined, by preponderance of evidence, that the Soldier intended to elect SBP for his spouse and that a correction was appropriate. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 that the evidence presented was 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 he: - completed a DD form 1883 (Survivor Benefit Plan Election Certificate) showing elections of: Spouse Only; Full Amount; and Option C within one year of his 10 November 2000 marriage to the applicant; - that his request was received and processed in a timely manner by the appropriate authority, and - that the applicant is entitled at a Survivor Benefits Plan beneficiary to receive the annuity amount, less premiums required for the coverage from effective date of the plan. 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, 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 Army Board for Correction of Military Records (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 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. 3. Title 10, U.S. Code, 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 one year after the date on which that person marries or acquires that dependent child. 4. DOD Financial Management Regulation (FMR) 7000.14-R, volume 7b, section 540601 states that an election for a spouse acquired after the 90-day election period must be received within one year of the marriage. ABCMR Record of Proceedings (cont) AR20190000290 4