IN THE CASE OF: BOARD DATE: 13 July 2022 DOCKET NUMBER: AR20220000800 APPLICANT REQUESTS: entitlement to Survivor Benefit Plan (SBP) annuity benefits, based on the death of her husband, a deceased former service member (FSM). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 14 September 2021 * Applicant self-authored statement, 2 February 2021 * Michigan Army National Guard Joint Forces memorandum (MIARNG), 28 January 2021 (Failure to Provide Retirement Counseling in Accordance with Army Regulation 600-8-7) * Certificate of Live Birth, Department of Public Health, * Headquarters (HQ), MIARNG, memorandum, 17 April 2007 (Notification of Eligibility for Retired Pay at Age 60) * HQ, MIARNG, memorandum, 17 April 2007 (Notification of Eligibility for Retired Pay at Age 60) * DA Form 6556-5 (Reserve Component SBP Election Certificate), 19 October 2007 * Michigan State Marriage License, 4 September 2008 * Michigan State Certificate of Birth, 29 November 2010 * Michigan State Certificate of Birth, 23 January 2013 * Michigan State Certificate of Death, 27 October 2020 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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, in effect: a. She was married to her husband, a FSM, for 12 years. He passed away at age 58, leaving her, his two adult sons from a previous marriage, and their two sons, aged 8 and 10. His untimely death has put a burden on her and his young children. The survivor annuity would go a long way to making their lives easier as they transition to a new normal. b. She knew the FSM for 17 years. He was not a typical Soldier and sped through the ranks and knew his jobs inside and out; he was a hard worker and truth seeker. He was a perfectionist and very meticulous. He loved the Army and promoted it every chance he got. c. If he knew he needed to update the DD Form 2626-5 for Reserve Component SBP within a year of his marriage, he would have gotten it done but he was not informed of it. He was planning on applying for retirement and figured all the paperwork would have been in order and updated at that time. d. The FSM contacted First Sergeant to get the process started applying for retirement and did not have any communication with the Army in the past 10 years. 3. The FSM was born 4. On 18 Jun 1981, the FSM enlisted in the Regular Army. 5. Following a series of reenlistments, The FSM was honorably discharged on 16 August 1998, by reason of reduction in force. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 16 years, 10 months, and 11 days of net active service during this period. 6. On 12 March 2004, the FSM enlisted in the Michigan Army National Guard (MIARNG). 7. On 17 April 2007, HQ, MIARNG notified the FSM of his eligibility for retired pay at age 60. His "20-Year Letter" notified him of the key points necessary to prepare his DD Form 2656-5 (Reserve Component SBP (RCSBP) Election Certificate). 8. The applicant provided a copy of an SPB Election Certificate, 19 October 2007, showing the FSM was not married and had no dependent children at the time he completed his SBP Election Certificate and selected option A, to decline to make an election until age 60. (He did not elect a deferred or immediate annuity, options B or C). 9. On 30 August 2008, the applicant and the FSM were married. 10. On 1 May 2009, the FSM was retired from the MIARNG and transferred to the Retired Reserve. His NGB Form 22 (National Guard Bureau – Report of Separation and Record of Service) shows he completed 5 years, 1 month, and 20 days of net service in the NGB during this period. His total service for pay and his total service for retired pay was shown as 22 years, 3 months, and 19 days. 11. The FSM's NGB Retirement Points Statement, 30 June 2009, shows he completed 24 good years towards retirement and qualified for retirement pay. 12. The FSM's son, 13. The FSM's son, 14. The applicant provided a copy of: a. An email from the FSM to 1SG CM, Army National Guard, 19 August 2020, showing the FSM contacted the MIARNG regarding assistance for application for retirement as he was turning 58 year of age. b. A Certificate of Death, showing the FSM died on 24 October 2020. c. An unsigned memorandum from 1SG Retirement Services Officer, HQ, MIARNG, 28 January 2021, showing the applicant was not provided RCSBP retirement counseling IAW Army Regulation 600-8-7. This memorandum outlines a discussion between the RSO and the FSM regarding his married status, the untimeliness of and reason for his failure to make a SBP election within 1 year. 15. An email response provided from Defense Finance Accounting Service to ARBA in response to the applicant's inquiry on 25 March 2022, shows there was no record of any SBP documents on file for the FSM. BOARD DISCUSSION: 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 law, policy and regulation. Public law provides a suspense for changing a SBP election after retired pay is started. The Board determined the former service member had not been properly counselled and was unaware of the guidelines and forms that correlated to his 20-year letter notification. The Board agreed the record should be corrected to show the former service member submitted a written and timely request to DFAS to elect Reserve Component SBP coverage with spousal concurrence. Such relief should result in the payment of SBP premiums annuity for his spouse and dependent children. 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 former service member (FSM) properly elected the Reserve Component Survivor Benefit Plan (RCSBP), with proper spousal concurrence, and his election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the payment of SBP annuities to the spouse and dependent children. 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 (RCSBP), 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. a. Three options are available: * Option (A) elect to decline enrollment and choose at age 60 whether to start SBP participation * Option (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 * Option (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60 b. At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP. 2. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000800 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1