RECORD OF PROCEEDINGS

IN THE MATTER OF:                              DOCKET NUMBER:  BC-2021-02818

XXXXXXXXXXXXXX	                      COUNSEL:  NONE
	
                                                                      HEARING REQUESTED: NOT INDICATED

APPLICANT’S REQUEST

His record be changed to show he made a timely election for spouse coverage under the Survivor Benefit Plan (SBP).

APPLICANT’S CONTENTIONS

He was provided incorrect information.  Prior to getting married, he called the Air Force Personnel Center (AFPC) and was told he had to wait until he reached one year of marriage before he could apply for the SBP.  He signed up the day after his first wedding anniversary and was denied.  He did not get the name of the person who provided the incorrect information because he did not think he needed it.  He spoke with employees at the Retired section of the Defense Finance and Accounting Service (DFAS) throughout the time he applied until his enrollment was denied.  It took a long time to receive any information on the decision.

At one point, he was told DFAS was trying to determine monthly payments, and the next time he was told his enrollment was denied.  While the employees were kind, he was provided incorrect or inconsistent information throughout the process.  He missed the time frame to enroll for SBP by one day and would like a chance to rectify the situation for him and his family. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force master sergeant (E-7).
		
On 10 Oct 12, according to DD Form 2656, Data for Payment of Retired Personnel, the applicant was single, and elected Option C, Coverage for Child[ren] Only, based on full retired pay. 

On 1 May 13, according to Special Orders No. XXXXX, dated 15 May 12, the applicant retired from the Regular Air Force.

On 7 Dec 19, according to a Certificate of Marriage, provided by the applicant, he married his current spouse.

On 8 Dec 20, according to DD Form 2656-6, Survivor Benefit Plan Election Change Certificate, the applicant elected a change in coverage due to marriage, for Spouse Only, based on full retired pay.  

On 18 Feb 21, according to DFAS letter to the applicant, his SBP enrollment was denied as his election must be submitted prior to the one-year anniversary of his date of marriage.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

APPLICABLE AUTHORITY

10 U.S.C. § 1448(a)(5): Participation by person marrying after retirement, etc. A person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan. 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.
 
Department of Defense Instruction 1332.42, Survivor Benefit Plan, Section 4.4. Making or Changing an Election after Retirement or NOE [Notification of Eligibility].  A covered participant who did not have a spouse or former spouse when he or she was initially eligible to make an election to participate in SBP or RCSBP, who later marries, may elect within one year of marriage to cover the new spouse.  Coverage is not automatic.

AIR FORCE EVALUATION

AFPC/DPFFF recommends denying the application.  There is no evidence of an error or injustice on the part of the Air Force or any basis in the law that allows the election of SBP coverage for a spouse after the one-year anniversary.  Survivors of military retirees may continue to receive a portion of the sponsor’s retired pay only if the member was a participant in the SBP. The law contains no automatic enrollment provision for a spouse acquired after retirement unless spouse coverage had been previously elected, then suspended due to the death or divorce of the previous spouse.
 
10 U.S.C. § 1448(a)(5) allows a member, who is unmarried at retirement, to elect coverage for the first spouse acquired after retiring.  However, the election must be submitted before the first anniversary of that marriage.  If a member fails to make an election before the first anniversary, SBP coverage for that person or another person of that category may be elected only if Congress authorizes an open enrollment period that pertains to that category.
  
The applicant’s DD Form 2656 reflects he was unmarried and elected child only coverage, based on full retired pay, prior to his 1 May 13 retirement.  The applicant married on 7 Dec 19, but did not notify DFAS-CL of the change to his marital status and request SBP coverage within the first year of marriage.  The applicant’s DD Form 2656-6, dated 8 Dec 19, states the election must be made prior to the one-year anniversary of marriage to be valid in accordance with the law.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 3 Aug 22 for comment (Exhibit D) but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFFF and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant did not submit his election for spouse SBP coverage within the timeframe required by law. Therefore, SBP coverage for his spouse or another person of that category may be elected only if Congress authorizes an open enrollment period that pertains to that category.  Accordingly, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2021-02818 in Executive Session on 20 Oct 22:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 20 May 22.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory, AFPC/DPFFF, dated 17 Jul 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 3 Aug 22.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.