ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20170000747 APPLICANT REQUESTS: his wife be added to his Survivor Benefit Plan (SBP) effective 10 February 2015 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Telephone logs * Two DD Forms 2656-6 (Survivor Benefit Plan Election Change Certificate) * A DD Form 2656 (Data for Payment of Retired Personnel) * Three letters to applicant from the Defense Finance and Accounting Service (DFAS) * A letter from applicant to DFAS * Letters from applicant to his United States (US) Senator * A letter from DFAS to his US Senator FACTS: 1. The applicant states he asked a Department of Veterans Affairs (VA) representative about how to add his new wife to his SBP. The VA representative gave him the wrong information. He was told he had to wait for one year before he could apply to have her added. Then when he applied shortly after their one year anniversary, DFAS denied his request because he had to have applied within one year of his marriage. 2. The applicant provides: a. Four pages of telephone logs showing multiple calls made by applicant to (presumably) the VA Pittsburgh Regional Office. b. A DD Form 2656-6, signed by applicant on 13 February 2015. The form reflects that he wanted to add his new spouse to his existing child only SBP coverage and is not witnessed. The form is otherwise properly completed. A handwritten note at the top right corner reads “original held for a year as requested. X___ insisted a new form was needed.” a. c. A DD Form 2656-6, signed by applicant on 12 February 2016. The form again reflects that applicant wanted to add his new spouse to his existing child only SBP coverage, though he appears to have mistakenly checked the box showing the basis of the change was remarriage with resumption of existing spouse coverage. The form is witnessed, though not notarized, by X___. d. A letter from DFAS, dated 19 February 2016, informing him it cannot process his SBP action and requesting a copy of applicant’s current marriage certificate. A handwritten note in the top right corner reads “GS-09 A forgot to include our marriage certificate with our paperwork.” e. A facsimile of his marriage certificate showing he married his current spouse on 10 February 2015 in a civil ceremony in West Virginia. f. A letter from DFAS, dated 16 March 2016, informing applicant that it could not add his spouse to SBP, because he had to notify it prior to his first year anniversary for his spouse to have been eligible. g. A letter from applicant to DFAS, dated 11 April 2016, appealing its decision. In the letter he states that he tried to fill out the DD Form 2656-6 within days of his marriage, had a few questions, and called the VA for assistance. The person he spoke to told him he had to wait a year due to a law that was passed to keep veterans from marrying on their deathbeds. He understood and agreed with that notion. He is a rule follower and so he waited a year. Then, when he applied right after his anniversary, he was told he did not submit his request within the one year deadline. When speaking with GS-09 X___ at the identification card office she said she has had many veterans complaining of this happening. He recommended retraining of VA representatives. He has contacted his Congressional representatives, but they told him to first appeal to DFAS. h. A letter from DFAS, dated 22 April 2016, informing him that it cannot process his SBP request, because his original 2001 SBP election was invalid. i. A letter from applicant to his US Senator speculating as to whether he could use the date of his church wedding (27 November 2015) instead of the date of his civil wedding (10 February 2015) to extend the one year deadline for adding his spouse to SBP. j. A letter from DFAS to his US Senator informing her that applicant had one year from the date of his marriage to enroll his wife as a spouse SBP beneficiary. He married his current spouse on 10 February 2015 and DFAS received his request on 17 February 2016. DFAS cannot answer for the VA regarding applicant’s statement that the VA gave him incorrect information. Applicant will have the opportunity to elect spouse coverage in the event Congress authorizes an SBP Open Season in the future. He may also petition the Board for Correction of Military Records to review his case. a. k. A DD Form 2656, dated 15 November 2000, completed by applicant in conjunction with 1 April 2001 retirement. The form shows he was divorced and had two minor daughters by his previous marriage neither of whom were disabled. He named them as the beneficiaries of his unpaid retired pay in the event of his death and also elected full child only SBP coverage for their benefit. 3. The applicant’s s DD 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 11 March 1981 and was honorably retired from the Regular Army for length of service on 1 April 2001. 4. By law, a newly acquired spouse must be enrolled in SBP at any point before a couple’s one year anniversary. The new spouse only becomes an eligible beneficiary under SBP once the marriage survives the one year mark. If the retiree dies prior to the one year anniversary the spouse, though enrolled, is ineligible to receive an annuity. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board found that the applicant submitted an untimely request, which fell outside the open season for enrollment. For that reason, the Board recommended denying the applicant’s request for relief. 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. 6/24/2019 CHAIRPERSON Signed by: 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, USC, section 1447, defines various terms related to the Survivor Benefit Plan (SBP). It states, in pertinent part, that the term “widow” means the surviving wife of a person who, if not married to the person at the time he became eligible for retired pay, was married to him for at least one year immediately before his death. The term “widower” means the surviving husband of a person who, if not married to the person at the time she became eligible for retired pay, was married to her for at least one year immediately before her death. The term “surviving spouse” means a “widow” or “widower.” 2. Title 10, USC, section 1448, applies the SBP. It essentially states, in pertinent part, that eligible participants include persons entitled to retired pay and persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age. A standard annuity participant is a person who is entitled to retired pay and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects not to participate. A person who is not married or 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. The election is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned. 3. Title 10, USC, section 1450, discusses payment of the SBP annuity. It states, in pertinent part, that effective as of first day after the death of a participant in the Plan, a monthly annuity under section 1451 of this Title shall be paid to the person’s beneficiaries under the Plan as follows: (1) the person’s eligible surviving spouse, (2) the surviving dependent children in equal shares, if the eligible surviving spouse is dead, dies, or otherwise becomes ineligible, (3) dependent children in the event of an election of child only coverage with spousal concurrence, (4) natural person with an insurable interest.