ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 August 2019 DOCKET NUMBER: AR20190003021 APPLICANT REQUESTS: * correct the former servicmember's (FSM) record to show he elected his Survivor Benefit Plan (SBP) coverage within 90 days * payment retroactive to the FSM's date of death * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * letter from Human Resource Command (HRC) * 20 year letter * NGB Form 22 (Report of Separation and Record of Service) * Retirement Points History Statement * discharge order * letter from unit to FSM's ex-wife * DD Form 1883 (SBP Election Certificate) * State of North Carolina Certificate of Death * State of North Carolina Certificate of Marriage * FSM's Divorce Decree with ex-wife * FSM's Separation Agreement with ex-wife * DD Form 2656-7 (Verification for Survivor Annuity) * Withholding Certificate for Pension * Direct Deposit form * FSM's Last Will and Testament * Notification of Death to HRC FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, 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: * the military had multiple opportunities to notify the FSM and the applicant of the discrepancy of not filling out the SBP paperwork within 90 days * a review of the FSM's records and the multiple visits to the North Carolina Army National Guard (NCARNG) can prove discrepancies on the part of the government * the letter that was addressed to the FSM's ex-wife is dated 31 January 1996 is the date the FSM made his SBP election * the applicant and the FSM visited the local NCARNG office multiple times to complete paperwork to list the applicant as the FSM's spouse and receive her military identification card * the government never addressed the issue of the FSM being outside his 90 day window to elect SBP * the applicant would assume, as the government, if a Soldier did not qualify or complete his retirement paperwork correctly a letter would have been sent to them immediately * the FSM would not have assumed she would be taken off the paperwork when making final arrangements * she was a distraught widow at the time this injustice occurred * a friend of the FSM's insisted she appear before the Board to explain the FSM's paperwork was in order * the applicant did not feel strong enough to handle it at the time * she made multiple calls to the NCARNG without a return call * she finally went to Fort Bragg, North Carolina for assistance 2. The 20 year letter addressed to the FSM was prepared on 8 September 1995. The FSM acknowledged receipt of the 20 year letter on 31 January 1996 and stated he understood he had 90 days to complete the DD Form 1883. 3. The FSM completed the DD Form 1883 on 31 January 1996, the date he acknowledged receipt of the 20 year letter. He elected his wife, at the time, as the beneficiary for his SBP and elected immediate coverage at the full amount. The FSM ex-wife acknowledged the FSM's election. 4. The FSM and his ex-wife were separated on 9 July 1997. The separation agreement states the ex-wife releases and relinquishes all rights to future support. The FSM and his ex-wife were divorced on 10 July 1998. 5. The FSM and applicant were married on 8 August 1998. The FSM died on 28 March 2012 at the age of 57. He did not receive retirement pay because he did not reach the age of 60 prior to his death. 6. The applicant provides the Board with the FSM's Last Will and Testament, which states: * the FSM gives all tangible personal property to his wife, the applicant * the FSM gives all remaining property real and personal to his wife, the applicant * the FSM has served in the Armed Forces and requests his personal representative make appropriate inquiries to ascertain benefit to which his dependents or heirs are entitled * specifically the FSM requested his personal representative consult with a retired affairs officer at the nearest military installation 7. The applicant provides the following documents for the Board's review: * DD Form 2656-7, verifying she is the spouse of the FSM for his SBP * withholding certificate for payment of the SBP * direct deposit form for payment of SBP * the FSM's Statement of Retirement Points showing he had 20 qualifying years for retirement * letter to HRC notifying them of the FSM's death 8. The applicant received a letter from HRC, dated 26 June 2012 denying her request for SBP. The letter stated, in part: * the FSM's file show he received his 20 year letter on 8 September 1995 * he submitted his DD Form 1883 on 31 January 1996 * he did not make his election with in the 90 days as prescribed by law * the FSM had another opportunity to make another election * he could have made an election within a year of his remarriage * he failed to request SBP coverage within the one-year time frame 9. Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers. It explains that retired pay is pay granted soldiers and former Reserve components soldiers who have completed 20 or more years of qualifying service and have attained age 60. Chapter 3 describes the RCSBP. For 20-year letters issued prior to 1 January 2001, the regulation states that members who receive their 20-year letter have 90 days from date of receipt to elect to participate in the RCSBP and return the DD Form 1883. Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60. Should the Soldier die before reaching their retired pay eligibility age, the survivors will not receive RCSBP benefits. 10. Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to first anniversary of remarriage). Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date. 11. Army Regulation 15-185 (ABCMR), the regulation under which this Board operations, provides the ABCMR may, in its discretion, hold a hearing. 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. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that partial relief was warranted. 1. Regarding that portion of the applicant’s request for SBP, there is sufficient evidence to support a finding that the FSM submitted a timely election for immediate RCSBP spouse coverage, which would result in the applicant’s entitlement to an SBP annuity as the surviving spouse. While the 20 year letter is dated 8 September 1995, the signature verification of required document counseling, on which the FSM acknowledged receipt of the 20 year letter and his understanding he had 90 days to complete the DD Form 1883, and the spouse SBP counseling statement are both dated 31 January 1996. The DD Form 1883 is also dated 31 January 1996. Therefore the Board found that the FSM made an election for immediate spouse RCSBP coverage within the 90-day election period and the applicant is entitled to SBP annuity as the surviving spouse. 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 that the evidence presented was 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 that the FSM made an election for immediate spouse RCSBP coverage within the 90-day election period and the applicant is entitled to SBP annuity as the surviving spouse upon the FSM’s death in 2012 and that the surviving spouse be paid all annuity due her. 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. 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. Army Regulation 15-185 (ABCMR), the regulation under which this Board operations, provides that ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice, and to direct or recommend changes in military records to correct the error or injustice, if persuaded that a material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 3. 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. If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive). Prior to 1 January 2001, failure to elect an option within the 90-day election period resulted in a deferment of the election until the member reached retirement age (generally his or her 60th birthday). 4. Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers. It explains that retired pay is pay granted soldiers and former Reserve components soldiers who have completed 20 or more years of qualifying service and have attained age 60. Orders will be issued announcing the effective date eligible persons are entitled to retired pay. Chapter 3 describes the RCSBP. For 20-year letters issued prior to 1 January 2001, the regulation states that members who receive their 20-year letter have 90 days from date of receipt to elect to participate in the RCSBP and return the DD Form 1883. Should they fail to do so, they may subsequently elect coverage under the SBP with their application for retired pay upon reaching age 60. Should the Soldier die before reaching their retired pay eligibility age, the survivors will not receive RCSBP benefits. 5. Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to first anniversary of remarriage). Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date. //NOTHING FOLLOWS//