RECORD OF PROCEEDINGS 
IN THE CASE OF: BOARD DATE: 21 September 2021 DOCKET NUMBER: AR20210008321 
APPLICANT REQUESTS: 
. correction of his records to show he elected Survivor Benefit Plan (SBP) spouse coverage at the time of his remarriage 
. a personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) 

. 
County Superior Court Final Judgment and Decree, 9 May 2005, with Supporting Court Petitions 

. 
State Marriage License, 19 October 2013 

. 
State Marriage Certificate, 19 October 2013 

. 
Self-Authored Statement, 2 March 2018 

. 
DD Form 2656-6 (SBP Election Change Certificate), 2 March 2018 


FACTS: 
1. The applicant did not file within the 3-year time frame provided in Title 10, 
U.S. 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 he was divorced at the time of his retirement in 2007. He remarried on 19 October 2013 and he went to a local military installation a few months later, in approximately March 2014, to update his records. His wife was enrolled in the Defense Enrollment Eligibility Reporting System to show her as his spouse and have her designated as the beneficiary of his eligible benefits and pension. 
a. 
He was never notified, prompted, or made aware that his spouse was not named as a beneficiary beyond the Defense Enrollment Eligibility Reporting System and TRICARE. It was not until he was reviewing his records to remove his former spouse that he discovered his current spouse was not designated as his SBP beneficiary. 

b. 
The Defense Finance and Accounting Service (DFAS) informed him that he did not elect to include his new spouse as his SBP beneficiary. Upon becoming aware of this, he submitted an SBP Election Change Certificate, but DFAS denied his request because it was not timely. This was due to no fault or dereliction of responsibility on his part. 

c. 
DFAS informed him that he may either wait for a period of open enrollment, which is rare, or apply to the ABCMR for correction of his records. 


3. On 13 January 1999, the applicant was serving as a traditional member of the 
U.S. Army Reserve in the rank/grade of staff sergeant/E-6. 
4. 
The memorandum from the U.S. Army Reserve Personnel Command (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 13 January 1999, notified the applicant he had completed the required years of qualifying service and was eligible for retired pay upon application at age 60 in accordance with Title 10, U.S. Code, chapter 1223. He was advised that Public Law 95-397 created the Reserve Component Survivor Benefit Plan (RCSBP) in which he was entitled to participate. By law, he had 90 calendar days from the date he received the memorandum to submit a DD Form 1883 (Survivor Benefit Plan Election Certificate). If not submitted, he would not be entitled to survivor benefit coverage until he applied for retired pay at age 60. If he did not elect coverage and should die before age 60, his survivors will not be entitled to benefits. 

5. 
U.S. Army Reserve Personnel Command Orders R-11-006945, 9 November 2000, ordered him to active duty in an Active Guard Reserve status in the rank/grade of sergeant first class/E-7 effective 17 January 2001. 

6. 
The County Superior Court Final Judgment and Decree, 9 May 2005, granted the applicant and M____ a divorce. The Property Settlement Agreement stipulated that M____ would receive 25 percent of the applicant's retirement pension plan as provided by the plan as long as the plan allowed. No provision was made relating to the SBP. 

7. 
The applicant's DD Form 2656 (Data for Payment of Retired Personnel), 2 July 2007, shows in: 

• 
item 14 (Marital Status) – single 

• 
item 26 (Beneficiary Categories) – I elect coverage for child(ren) only 

• 
item 27 (Level of Coverage) – I elect coverage based on full gross pay 



8. 
The applicant retired effective 30 September 2007. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: 

. 
item 12c (Net Active Service This Period) – 6 years, 8 months, and 14 days 

. 
item 12d (Total Prior Active Service) – 13 years, 6 months, and 16 days 



9. 
On 19 October 2013, the applicant and R____ married. 

10. 
The applicant's letter, 2 March 2018, states that at the time of his retirement he was not married and did not have a spouse to appoint as an SBP beneficiary. Since then, he has remarried, but was not previously aware of the policies and procedures to add his new spouse as his SBP beneficiary. Had he known, he would have acted sooner. As a retiree, he wants to ensure that his family is supported and able to meet their financial obligations in the event of his death and requests designation of his spouse as his SBP beneficiary. 

11. 
The applicant's DD Form 2656-6 (SBP Election Change Certificate), 2 March 2018, shows in: 

• 
section III (Conditions that Trigger Eligibility to Change Coverage) – Remarriage 

• 
section IV (Requested Change to Coverage) – Spouse Only 

• 
section V (Level of Coverage) – Full Retired Pay 




BOARD DISCUSSION: 
After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board agreed the applicant was not informed of the requirement to make a separate SBP election for his spouse when he updated other military records. Based on a preponderance of evidence, the Board determined the record should be corrected to show he elected spousal coverage; the applicant is advised he may have to make catchup payments on premiums. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
:XX :XXX :XX 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 properly elected spousal coverage under the Survivor Benefit Plan (SBP) on 20 October 2013, a day after his marriage, and his election was received and processed in a timely manner by the appropriate DFAS office. 
X 
CHAIRPERSON 
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 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. 
Title 10, U.S. Code, section 1448, provides the general rules for participation in the SBP. A person who does not have an eligible spouse beneficiary under the plan and remarries may elect to provide a level of coverage within 1 year of the remarriage. 

3. 
Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60 (and able to participate in SBP), 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 not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay (costs for option C being the more expensive). 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. They cannot cancel SBP participation or change options they had in RCSBP – it automatically converts to SBP coverage. If RCSBP option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member die prior to age 60. 

4. 
Public Law 108-375, enacted 28 October 2004, established an SBP open enrollment season from 1 October 2005 through 30 September 2006. Congress has not established an SBP open enrollment season since that time. 


//NOTHING FOLLOWS//