IN THE CASE OF:

		BOARD DATE: 28 June 2023

		DOCKET NUMBER: AR20220012111


APPLICANT REQUESTS: in effect:

	a.  correction of her late husband's records to show:

*	his SBP election in connection with his application for retire pay is put in effect
*	his application for retired pay was approved and timely processed

	b.  payment of her late husband's retired pay from the date he reached age 60 
through the date of his death; and

	c.  payment of the SBP annuity from the date of his death.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record under the Provisions 
of Title 10, U.S. Code, Section 1552), with continuation
*	Document List
*	Headquarters, New York Army National Guard Memorandum (Notification of 
Eligibility for Retired Pay at Age 60), 28 October 1991
*	National Guard Bureau (NGB) Form 22 (Report of Separation and Record of 
Service) for the period ending 30 September 1996
*	U.S. Army Human Resources Command (HRC) Letter, 12 February 2008
*	DD Form 108 (Application for Retired Pay Benefits), 25 January 2008
*	NGB Form 23B (Army National Guard Retirement Points History Statement), 
20 July 2020
*	DD Form 2656 (Data for Payment of Retired Personnel), 24 January 2008
*	NGB Form 3815 (Standard Installation and Division Personnel Reporting System 
Input and Control Data Authentication and Transmittal), 18 April 1993
*	DA Form 4187 (Personnel Action) (signature and date line cut off of document)
*	HRC Letter, 7 July 2021
*	Certificate of Death, 6 February 2020
*	Certificate of Marriage, 9 October 1992

FACTS:
1.  The applicant, the surviving spouse of the deceased former service member (SM), 
states:

	a.  Her husband submitted his retirement packet and was denied for failure to have 
sufficient Reserve Component (RC) retirement points. Her husband received his 
Notification of Eligibility for Retired Pay at Age 60 on 28 October 1991.

	b.  On 18 April 1993, her husband submitted a copy of their marriage certificate, an 
Internal Revenue Service Form W-4, and a personnel action form to change his status 
from single to married. Her husband was not counseled to submit an SBP election 
change to the Defense Finance and Accounting Service within 1 year of their marriage. 
He was counseled only to submit proof that he was married. Although he did not report 
his marriage to HRC within 1 year, he did report his marriage to his Army National 
Guard unit.

	c.  Her husband passed away prior to resubmitting his retirement packet. On 7 July 
2021, her request for her late husband's retirement benefits was denied.

2.  The Headquarters, New York Army National Guard memorandum (Notification of 
Eligibility for Retired Pay at Age 60), 28 October 1991, shows the SM was notified that, 
having completed the required years of service, he would be eligible for retired pay 
upon application at age 60. The memorandum stated his eligibility for retired pay may 
not be denied or revoked on the basis of any error, miscalculation, misinformation, or 
administrative determination of years of creditable service performed unless it resulted 
directly from fraud or misrepresentation on his part. The memorandum makes no 
reference to the SBP or Reserve Component SBP (RCSBP).

3.  On 8 December 1991, the SM completed a DD Form 1883 (SBP Election 
Certificate). He indicated he was not married and had no dependent children. He 
elected no SBP coverage. The DD Form 1883 was signed and dated by the applicant 
and a witness.

4.  On 9 October 1992, the SM and the applicant married.

5.  The NGB Form 3815 from Headquarters, 187th Signal Brigade, New York Army 
National Guard, 18 April 1993, shows the SM's DA Form 4187 requesting to change his 
martial status from single to married was submitted to Headquarters, New York Army 
National Guard, to update the Standard Installation and Division Personnel Reporting 
System database. (Note: The portion of the DA Form 4187 containing the 
commander's/authorized representative's signature block is cut off.)

6.  Office of the Adjutant General, State of New York, Orders 128-010, 8 May 1997, 
separated the SM from the Army National Guard on 1 May 1997 and transferred him to 
the U.S. Army Reserve Control Group (Reinforcement) effective 2 May 1997. His 
NGB Form 22 shows he completed 24 years, 9 months, and 18 days of net service. 
(Note: The SM should have been transferred to the U.S. Army Reserve Control Group 
(Retired Reserve).)

7.  On 24 January 2008, the SM completed a DD Form 2656 indicating he was married 
to the applicant and had one dependent child. He elected SPB coverage for "Spouse 
and Child(ren)" based on full gross pay. The DD Form 2656 was signed and dated by 
the applicant and a witness.

8.  The HRC letter to the SM in response to his submission of a DD Form 108 
(Application for Retired Pay Benefits), 12 February 2008, states an audit of his military 
records at HRC shows he did not complete 20 qualifying years of service. Accordingly, 
he was ineligible to receive retired pay. HRC recommended that he contact the Adjutant 
General of the state in which he performed his last unit training. He was instructed to 
obtain a "close out" NGB Form 23B. He was advised that if the NGB Form 23B reflects 
20 or more years of qualifying service, he may attach that form to his application and 
resubmit his request for retirement.

9.  The SM reached age 60 in October 2008.

10.  The SM's records do not contain orders retiring him and placing him on the Army of 
the United States Retired List.

11.  On 2 February 2020, the former SM died. The death certificate lists the applicant as 
his spouse and the informant.

12.  The former SM's NGB Form 23B, 20 July 2020, shows he completed 25 years, 
10 months, and 6 days of total service.

13.  The HRC letter to the applicant, 7 July 2021, informed her that her application for a 
survivor benefit annuity based on the military service of her late spouse was denied. 
She was advised that the SM had 1 year from the date of their marriage to make an 
SBP election change and submit it to HRC. Since the SM did not submit a 
DD Form 2656-6 designating her as the beneficiary, she is not eligible for an annuity.

14.  The Defense Retiree and Annuitant Pay System does not have any records on file 
for the deceased former SM.

?
BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found the 
relief was warranted. The Board carefully considered the applicant's record of service, 
documents submitted in support of the petition and executed a comprehensive and 
standard review based on public law, policy and regulation. Upon review of the 
applicant’s petition and the former service member’s available military records, the 
Board determined the evidence of record shows on 24 January 2008, the FSM 
completed a DD Form 2656 indicating he was married to the applicant and had one 
dependent child. He elected SPB coverage for "Spouse and Child(ren)" based on full 
gross pay. The DD Form 2656 was signed and dated by the applicant and a witness. 

2.  The Board agreed there was a clear injustice and noted it was by no fault of the 
FSM, he was not properly retired to allow his family the opportunity to receive the 
benefits he intended for them.  Evidence shows the FSM completed a minimum of 20 
good years and his records should be correct to reflect those years. The Board agreed, 
the deductions for the SBP payments should be deducted from the retirement back pay. 
The Board noted October 2008 is when the FSM turned 60 and should have received 
retirement and began to contribute into the SBP of which neither happened. Thus the 
Board determined the evidence presented is sufficient to grant relief and correct the 
FSM’s 2008 election to participate in SBP.


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:

*	the FSM submitted a DD Form 2656-6 (Survivor Benefit Plan (SBP) Election 
Change) to add spouse coverage within 1 year of their marriage
*	the FSM applied for retired pay; it was approved and processed by DFAS in a 
timely manner
*	payment of the FSM’s retired pay from the date he reached age 60 through 
the date of his death
*	the applicant submitted a written and timely request to DFAS for SBP annuity 
one day after her spouse’s death in accordance with public law
*	such relief shall result in the payment of the SBP annuity from the date of his 
death
*	such relief for SBP payments taken from the retirement back pay since 2008 
when FSM turned 60 and would contribute into SBP
   
	 
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 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.

2.  Public Law 95-397, the RCSBP, 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 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. 
Members cannot cancel SBP participation or change options they had in the RCSBP. 
RCSBP coverage automatically converts to SBP coverage upon retirement.

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 1 year after the date on which that person marries or 
acquires that dependent child.

4.  The Defense Finance and Accounting Service website defines "gray area" retirees 
as Reserve Component members who served in the National Guard or Reserve, are 
qualified for retired pay, and have "retired" from their service (stopped drilling), but are 
not yet at the age where they can begin receiving retired pay. The time between their 
"retirement" from the service and the date when they are eligible to begin receiving 
retired pay is the "gray area." The "gray area" applies even if the member is assigned to 
the Retired Reserve.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220012111


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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