ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 April 2019 DOCKET NUMBER: AR20160010341 APPLICANT REQUESTS: The applicant requests, in effect, that her records be corrected to show she requested a Survivor Benefits Plan (SBP) for her dependent child and her new spouse. She states that she was not briefed on the consequences of declining SBP when she retired or options if she later married. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from the applicant dated 20 May 2016 in support of her application * State Record of Marriage for the applicant and spouse showing a date of marriage of 8 June 2015 * DD Form 214, Retirement for Length of Service, 31 August 2002 * DD Form 2656 (Data for Payment of Retired Personnel), signed by the applicant on 17 May 2002 * Memorandum, U. S. Army Reserve Personnel Command, 28 September 2000, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) FACTS: 1. On 17 May 2002, the applicant had over 20 years of active duty, qualified for regular retirement, completed and signed a DD Form 2656 to make pay elections for retirement. In the SBP section the instruction to the applicant states, “See your Survivor Benefits Plan counselor before making an election.” In box 26g, the applicant checked: * “I elect not to participate in SBP” and * “I do have eligible dependents under the plan.” 2. In box 25, the applicant showed that she had a dependent son who was 16 years old at the time and was not disabled. 3. At the time of her retirement, the applicant was not married. By her signature, the applicant certified as printed on the form that “I have been counseled that I can terminate SBP participation, with my spouse’s written concurrence, within one year after 1. the second anniversary of commencement of retired pay. However, if I exercise my option to terminate the SBP, future participation is barred.” The DD Form 2656 was counter-signed by a Retirement Services official at Fort Campbell. 3. The applicant declined SBP for her dependent her DD Form 2656. The DD Form 2656 instructed the applicant to see her SBP counselor before making an election. Title 10, U. S. Code (USC), chapter 73, subsection II (Survivor Benefit Plan) states in section 1448 that an election is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. 4. On 31 August 2002, the applicant retired from active duty with 20 years, 9 months, and 9 days active duty and 3 years, 2 months, and 24 days inactive duty. 5. On 8 June 2015, the applicant was married. Title 10, USC, chapter 73, subsection II (Survivor Benefit Plan) states in section 1448 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. There is no evidence that the applicant applied for SBP for her spouse. It is noted that the applicant did have a dependent child when she elected not to participate in SBP. According to the law, not selecting SBP upon retirement for the dependent child made her ineligible to add a spouse or dependent child at a future date. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. Public law provides a suspense for changing a SBP election after retired pay is started. 2. There is no evidence the applicant attempted to change the SBP election during the period in which she was allowed. The Board cannot assume she was not properly counseled as SBP elections are required when members request to start retirement pay. The applicant signed a DD Form 2656, electing not to participate in SBP and there is no evidence the applicant changed her election during the allotted time to make changes. Since she never elected SBP, law does not allow for the subsequent addition of a new dependent to receive benefits. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, U. S. Code (USC), chapter 73, subsection II (Survivor Benefit Plan) states in section 1448: a. An election is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. b. 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. 2. The Defense Finance and Accounting SBP website https://www.dfas.mil/retiredmilitary/provide/sbp.html states the following about enrollment in SBP after retirements: a. Some service members choose not to enroll in the SBP plan because they have no eligible beneficiaries at the time of their retirement. Later, through marriage or the birth of a child, they find themselves with eligible beneficiaries and want to change their earlier election. b. If this happens to you, you have one year from the date of initial eligibility -- the date of marriage or the birth date of the child -- to declare your wishes to have the beneficiary covered. c. To do so, please mail or fax the following items to DFAS Retired and Annuitant Pay within one year of the date of eligibility: (1) Survivor Benefit Plan Election Change Certificate (DD 2656-6) (2) A copy of any relevant legal document (e.g., marriage certificate or birth certificate) d. If you have eligible beneficiaries at the time of your retirement and elect not to have them covered, you will not be able to change that election in the future.