ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20160016310 APPLICANT REQUESTS: as the spouse of the Former Service Member (FSM), he requests the Survivor Benefit Plan (SBP) coverage to be changed to spouse from automatic coverage. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Mr. X__ X__ Death certificate, dated 24 March 1998 * unknown form, dated 5 May 1986 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 August 2002 * Retiree account statement, dated 14 December 2014 * Mr. X__ X__ marriage certificate, dated 12 March 2013 * FSM death certificate, dated 6 July 2016 * Defense Finance and Accounting Service (DFAS) letters, dated 30 August 2016 and 1 September 2016 FACTS: 1. The applicant states: * at the time the FSM retired, the SBP coverage defaulted to automatic coverage because the FSM did not complete the required DD Form 2656 (Data for Payment of Retired Personnel) * 1 September 2002, payments started being deducted * 16 June 1979, the FSM married her first spouse (Mr. X__ X__) * 24 March 1998, Mr. X__ X__ died * SBP payments in the amount of $102.83 were still being deducted from the FSM’s account. * 12 March 2013, the FSM married Mr. X__ X__ (current spouse) * 6 July 2016, the FSM died without completing the paperwork to add her current spouse (the applicant) * both the FSM and the applicant assumed since payments were being deducted each month that he was covered under SBP; it was only when he applied for benefits and was denied that he was informed the proper paperwork had not been submitted 2. A review of the FSM’s service records show the following on: * 17 August 1982 – enlisted in the Regular Army and served in various stateside and overseas assignments * 26 April 2002 – DD Form 2656 (Data for Payment of Retired Personnel) was completed by the applicant showing the following in: * section 8 (Dependency Information): * item 22 (Spouse) “Not Applicable” * item 25 (Dependent Children) “Not Applicable” * section 9 (SBP Election) item g, “I elect not to participate in SBP” and “I do not have eligible dependents under the plan” * 31 August 2002 – honorably released from active duty by reason of sufficient service for retirement * 12 March 2013 – married Mr. X__ X__ 3. The applicant provides: * Mr. X__ X__‘s death certificate, showing he died on 24 March 1998 and the informant was the FSM * unknown form, showing Mr. X__ X__- as her husband and Mr. X__ X__ Jr. as her son (age 4 at the time the form was completed on 5 May 1986) * retiree account statement, showing the FSM had SBP spouse only payments being deducted from her retiree pay * FSM’s death certificate, showing she died on 6 July 2016, and the applicant was the informant and the surviving spouse * DFAS letters, wherein he is denied SBP payment because he was not an eligible beneficiary because the FSM had not elected to participate in the SBP upon her retirement 4. On 7 March 2019, a Defense Finance and Accounting Service official provided an email explaining why SBP spouse only coverage was reflected on the FSM’s December 2014 retiree account statement that states, the FSM’s account went into automatic coverage because DD Form 2656 was not received and uploaded into their system until a month after the FSM’s retirement. The account was corrected by their casualty department at the time of the FSM’s death and the account was finalized to declined. 5. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name; an election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse coverage. 6. Title 10, U.S. Code (USC), section 1448(a)(5) provides that a person who is not married upon becoming eligible to participate in the SBP but who later marries 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is warranted. The applicant’s contentions were carefully considered. The FSM was paying SBP premiums prior to her marriage to the applicant, so they assumed he was covered after they married as SBP premiums continued to be withdrawn from her monthly retirement pay. The Board agreed the FSM would have changed the coverage to spouse within a year of their marriage if she had known accordingly the requirement to do so. Based upon the preponderance of evidence, the Board agreed there is sufficient evidence to grant relief. 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 FSM properly elected the Survivor Benefit Plan (SBP) on 12 March 2013, and her election was received and processed in a timely manner by the appropriate DFAS office. Such relief should result in the payment of any previously denied SBP annuities. 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. ? REFERENCE: 1. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name; an election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse coverage. 2. Title 10, USC, section 1448(a)(5) provides that a person who is not married upon becoming eligible to participate in the SBP but who later marries 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016310 4 1