ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 January 2020 DOCKET NUMBER: AR20190001810 APPLICANT REQUESTS: * to receive the deceased former service member's (FSM) Reserve Component Survivors Benefit Plan (RCSBP) * back pay to the date of the FSM's death of 5 September 2018 APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * SBP Claim * Verification for Survivor Annuity * Claim for Unpaid Compensation * Withholding Certificate for Pension or Annuity Payments * Republic of Honduras Certificate of Death * Direct Deposit Form * Marriage Certificate * SBP Enrollment Election * retirement orders * 20 year letter * NGB Form 22 (Report of Separation and Record of Service) * letter from Defense Finance and Accounting Services (DFAS) FACTS: 1. The applicant, the spouse of the FSM, states: * she has been denied payment of the FSM's SBP because there was not an updated SBP form received from the FSM * the FSM completed the form and submitted it to the State Retirement Services Officer on 3 February 2000 * she was informed by DFAS on 14 November 2018 that she had to submit a request to the Board for correction * the FSM received his 20 year letter on 21 January 1992; he was not married at the time and filled out his DD Form 1883 (SBP Election Certificate) as such * the FSM married the applicant on 2 January 1993 * the FSM updated his RCSBP form on 23 February 2000 * the FSM passed away on 5 September 2018 * the applicant sent the SBP annuity request to US Army Human Resources Command (HRC) on 17 September 2018 * the applicant was notified of the denial of benefits on 14 November 2018 * the applicant believes the FSM submitted all the correct information in a timely manner * the applicant should be entitled to his SBP as per the documents she submitted for the Board's consideration * the applicant was the FSM's legal spouse at the time of his death * she is requesting to be back paid to the date of the FSM's death on 5 September 2018 2. The applicant provides the following documents for the Board's consideration: * an SBP Claim dated 17 September 2018 which states the request was sent to Indianapolis, Indiana on 17 September 2018 * a DD Form 2656-7 (Verification for Survivor Annuity), dated 17 September 2018 wherein the applicant requests the FSM's SBP annuity * a claim for unpaid compensation of deceased member of the Uniformed Services, dated 17 September 2018 * a form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 17 September 2018 * a Honduras Certificate of Death, showing the FSM died on 5 September 2018 at the age of 64 years * a direct deposit form, dated 17 September 2018 * a marriage certificate showing the applicant and FSM were married on 2 January 1993 * a DD Form 2656-3 (SBP and RCSBP Open Enrollment Election), dated 23 February 2003, showing the FSM elected SBP coverage for his spouse and children based on his full gross retired pay with immediate annuity * Orders 015-010, published by the Office of The Adjutant General, Camp Robinson, dated 15 January 2013 showing the FSM retired effective 13 October 2001 * a memorandum to the FSM from Office of The Adjutant General, North Little Rock Arkansas, dated 21 July 1992 stating his 20 year letter had been issued * an NGB Form 22 showing the FSM was honorably retired effective 13 October 2001 * a letter to the Honorable B , on behalf of the applicant, from DFAS stating: > they received notification from the branch of service on 3 October 2018 regarding the applicant's request for SBP annuity's for the FSM > the applicant included and SBP Open Enrollment Change Form in her inquiry to DFAS > they were unable to verity the Army received the form in a timely manner > the form was not forwarded to DFAS > the applicant is not eligible for an SBP annuity from the FSM's retired pay account > they sent a letter to the applicant on 23 October 2018 denying her claim > she had 30 days from the date of the letter to file a claim for the SBP through the Defense Office of Hearings and Appeals > they did not receive an appeal from the applicant within the 30 day period > her option to appeal expired > she may petition the Board to request correction of the FSM's record > they are not authorized to change the record without authorization from the Board 3. The FSM's records contain the following documents for the Board's consideration: a. DD Form 2656 (Data for Payment of Retired Personnel), dated 5 March 2014, which shows: * the FSM named the applicant as the Designation of Beneficiaries for Unpaid Retired Pay * the FSM elected coverage for his spouse and children for SBP * he elected coverage based on his full gross pay * the applicant and witness signed the form on 5 March 2014 b. a DD Form 1883 (SBP Election Certificate), dated 18 October 1992 which shows: * the FSM's retirement date would be 31 July 2014 * he was not married * he chose coverage for his children only with full immediate coverage c. a memorandum from Office of The Adjutant General, dated 17 July 1992, subject Notification of Eligibility for Retired Pay at Age 60 d. the FSMs Annual Statement, dated 4 March 2014 showing he had 29 years, 7 months, and 3 days creditable service for retired pay 4. Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married when they are eligible to elect SBP benefits and later becomes married may elect to participate in SBP upon their marriage. They have one year after the date of marriage to make an election. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the Former Service Member’s (FSM) record of service, his 20-year letter and marital status at the time, his marriage to the applicant, his delayed submission of a properly constituted RCSBP spouse election and the date of the FSM’s passing. The Board found the FSM intended to identify his spouse as his RCSBP beneficiary and took action to do so. Based upon a preponderance of evidence, the Board determined that a correction to the FSM’s record was appropriate to remedy an injustice. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 as follows: - The FSM timely submitted a request to add his spouse as RCSBP beneficiary on 20 December 1993, within one-year of his 2 January 1993 marriage; - His request was accepted and processed by the appropriate authority, and; - The applicant, as a proper RCSBP beneficiary, is eligible to receive payments from the FSM’s RCSBP annuity effective the date of his death. 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. 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, U. S. Code, section 1448(a)(5) provides that a person who is not married upon becoming eligible to participate in the SBP but who later marries 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. 3. Public Law 105-261 established an open enrollment period from 1 March 1999 to 29 February 2000 for members not participating to the fullest extent possible. ABCMR Record of Proceedings (cont) AR20190001810 5