BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150015203 BOARD VOTE: ___x______ __x___ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150015203 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 by corrected by showing he submitted an application for spouse SBP coverage within one year of his marriage on 7 June 2008 and his application was approved. ____________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. BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150015203 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his record to show he enrolled his spouse in the Survivor Benefit Plan (SBP) in a timely manner. 2. The applicant states that he married Merri L. C___ on 7 June 2008. However, officials at Retired and Annuitant Pay, Defense Finance and Accounting Service (DFAS), denied his request to enroll him in SBP with spouse coverage because it was not submitted within one (1) year of the date of his marriage. a. He states DFAS denied his requests on four separate occasions. In all of the DFAS responses he was informed in a "boilerplate" format, "Due to receiving your request in excess of the one year period prior to your one year anniversary date, this Center cannot honor your request for the SBP. Occasionally an Open Season Enrollment Period is offered to retirees to allow them to enroll in the SBP. When this is available, it will be posted in your retiree newsletter." b. An SBP Open Season Enrollment Period opened in the last Quarter of 2013; however, his application was denied. He contacted his congressman and DFAS advised that the applicant could petition the Army Review Boards Agency (ARBA) and request review of his case. c. The applicant states that he was unaware of the 1-year window to apply and he missed the deadline by only 66 days. In addition, DFAS did not make him aware of the ARBA appeal process until after the applicant requested the assistance of his congressman in resolving this matter. d. He states the SBP Open Season Enrollment Period, which was announced in a DFAS Retiree Newsletter, indicated that it did not exclude non-same-sex spouses. He believes the wording of the announcement was misleading and did not include a caveat about being only for same-sex spouses. e. He states the four previous DFAS denials unjustly gave him false hope for enrolling his spouse. He also states he feels that he has been discriminated against because he is heterosexual and married to a woman. The inability to enroll his spouse and have her receive SBP benefits will cause a harmful and stressful financial burden on his spouse after his demise. He adds there is no financial burden to the government by granting his SBP enrollment because he is willing to pay any SBP premiums, penalties, or taxes to bring the account to a current status. 3. The applicant provides copies of his: * self-authored letter, dated 4 September 2015 (summarized above) * letters and correspondence related to his request for SBP enrollment CONSIDERATION OF EVIDENCE: 1. The applicant was born in September 1947. 2. He was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant, and ordered to active duty on 9 June 1971. a. He was honorably released from active duty on 2 July 1977 and transferred to the U.S. Army Reserve Control Group (Reinforcement). b. He entered active duty on 14 August 1986, continued to serve on active duty, and attained the rank of lieutenant colonel/pay grade O-5 on 1 June 1997. 3. A DD Form 2648 (Preseparation Counseling Checklist), in pertinent part, shows the applicant requested financial management counseling that included the topics of retirement and SBP. The applicant and transition counselor signed the form on 6 January 2003. 4. The applicant was honorably retired from active duty on 31 May 2003 and transferred to the USAR Control Group (Retired). He had completed 22 years, 10 months, and 11 days of total active service. 5. In support of his application the applicant provides a letter to the Honorable Dan N____, U.S. House of Representatives, dated 11 May 2015, that shows he requested assistance with enrolling in the SBP with spouse coverage. He provided a summary of the actions he had taken in his effort to enroll in SBP, along with seven (7) enclosures documenting his efforts and the responses he received. He noted that he was divorced at the time of his retirement (on 1 June 2003), he had only received one or two DFAS Retiree Newsletters prior to his marriage, he married Merri L. on 7 June 2008, and he was unaware of the 1-year time limit for SBP enrollment upon marriage. The enclosures show: a. On 12 August 2009, he submitted a letter with his marriage certificate to DFAS requesting enrollment in SBP. The letter was dated 66 days after the 1-year anniversary period and DFAS denied his request. b. On 13 August 2009, he submitted a letter to DFAS requesting his spouse as his primary beneficiary. DFAS accepted the change to his primary beneficiary, but not his SBP enrollment. c. In July 2010, he submitted a second letter to DFAS requesting enrollment in SBP (copy not available). He demanded an answer, but he did not receive an answer to the letter. d. On 8 June 2012, he submitted a third letter to DFAS requesting enrollment in SBP. e. On 10 August 2012, DFAS provided a response denying his enrollment in SBP because his request was received in excess of the 1-year period prior to his 1-year anniversary. He was provided information that occasionally an Open Season Enrollment Period is offered to retirees to allow them to enroll in SBP. f. DFAS Retiree Newsletter (2013 At-a-Glance) that shows a Cost of Living Adjustment for 2014 of 1.5 percent for retired pay and SBP annuities. It also contains an article titled "SBP Opportunity Open for Military Retirees with Same-Sex Spouses." g. On 4 February 2014, he submitted a fourth letter to DFAS requesting enrollment in SBP. He referenced the announced Open Season Enrollment Period. h. On 19 February 2014, DFAS provided a response denying his enrollment in SBP because his request was received in excess of the 1-year period prior to his 1-year anniversary. He was provided information that occasionally an Open Season Enrollment Period is offered to retirees to allow them to enroll in SBP. i. On 22 June 2015, DFAS provided a response to his congressman. It shows, in pertinent part, the applicant retired on 1 June 2003 and he elected SBP child-only coverage (since he was not married at the time). On 7 June 2008, he married Merri L. On 19 August 2009, DFAS received his letter requesting SBP with spouse coverage; however, the request was not within 1-year of the date of marriage. DFAS provided a summary of previous Open Season Enrollment Periods that were authorized by Congress. DFAS also offered information on the Supreme Court decision pertaining to key portions of the Defense of Marriage Act that were unconstitutional and the response from the Office of the Secretary of Defense to comply with the decision with respect to the Open Season for same-sex couples. DFAS noted, as with all retirees, this category of individuals had one (1) year from the 26 June 2013 ruling to elect to participate in SBP. j. On 30 June 2015, the Honorable Dan N____ provided the applicant a copy of DFAS's response to his inquiry on behalf of the applicant concerning the request for enrollment in SBP with spouse coverage. 6. In connection with the processing of this case, DFAS was asked to verify information relevant to the applicant's SBP election, coverage, and participation. A DFAS official provided copies of the correspondence previously summarized in paragraph 5, above. Also provided were: a. A DD Form 2656 (Data for Payment of Retired Personnel) completed by the applicant that shows in: * Section VII (Federal Income Tax Withholding Information), he was single and claimed two (2) exemptions * Section VIII (Dependency Information), he had one (1) dependent son * Section XII (Certification), the applicant and the Retirement Services Officer signed the form on 22 April 2003 b. A Certificate of Marriage, Yakima, WA, that shows the applicant and Merri Lynn C____ married on 7 June 2008. c. DFAS Retired and Annuitant Pay letter, dated 6 July 2016, that referenced the applicant's letter, dated 19 February 2014. It shows his request to enroll his spouse in SBP was denied because his request was received in excess of the 1-year period prior to his 1-year anniversary. He was provided information that occasionally an Open Season Enrollment Period is offered to retirees to allow them to enroll in SBP. REFERENCES: 1. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Retiring members and spouses were to be informed of the SBP options and effects. 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 1 year after the date on which that person marries or acquires that dependent child. 3. Army Echoes is the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. Since April 2007, every issue contained the warning or a similarly-worded warning, "Remember: You are responsible for updating your retired pay file information at DFAS-CL (use mailing address below) within 1 year of the event if you marry, remarry, have a child, are widowed or divorced and need to make or update a Survivor Benefit Plan (SBP) election." DISCUSSION: 1. The applicant contends his record should be corrected to show he enrolled his current spouse in the SBP in a timely manner because he: * was not aware of any timeframe rules related to adding a new spouse to SBP * requested his spouse be added to his SBP within approximately 1 year and 2 months of the date of their marriage * made several requests to DFAS and was given misleading information concerning Open Season Enrollment Periods * received information pertaining to the Open Season Enrollment Period for Same-Sex Retirees that was ambiguous and the criteria is discriminatory 2. The sincerity of the applicant's comments with respect to the clarity of information he received from DFAS about the SBP is not in dispute. 3. The issues of discrimination and justice the applicant raises with respect to the law governing the Open Enrollment Season Period for same-sex retirees is beyond the jurisdiction of this Board. 4. The applicant was serving as a field grade officer and he had completed more than 22 years of service for retirement purposes at the time of his retirement counseling and separation processing. a. The date of the applicant's divorce from his first spouse is not available. It is also unclear whether any divorce decree required him to provide former spouse coverage (or if he married between his divorce from his first spouse and his marriage to Merri L.). b. The evidence of record shows he was counseled on the SBP on 22 April 2003. c. The applicant transferred to the USAR Control Group (Retired) effective 1 June 2003. d. Based on the evidence of record, it appears that the applicant was never enrolled in SBP with spouse or former spouse coverage. e. He married his current spouse on 7 June 2008. f. The evidence of record shows that, beginning in April 2007, every issue of the Army bulletin Army Echoes informed retirees that they are responsible for updating their retired pay file by sending information to DFAS within 1 year of the event if they marry, remarry, have a child, are widowed or divorced and need to make or update an SBP election. g. On 12 August 2009, he submitted a letter with his marriage certificate to DFAS requesting enrollment in SBP with spouse coverage. h. He was informed that his request could not be processed because it exceeded the 1-year time period from the date of the marriage. 5. There is no evidence the applicant submitted an application to enroll in the SBP with spouse coverage within 1 year of the date of his marriage, nor is there independent evidence showing he was misadvised by any Army official. 6. The governing law is clear in that a person who is not married, but who later marries, may elect to participate in the SBP with spouse coverage. 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. The applicant failed to make such an election within 1 year after the date on which he was married. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015203 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015203 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2