BOARD DATE: 24 August 2020 DOCKET NUMBER: AR20170006122 APPLICANT REQUESTS: Correction of his record to show: * he changed his Survivor Benefit Plan (SBP) annuitant from his dependent daughter and added his spouse * his SBP election reflected his dependent daughter as disabled APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2656 (Data for Payment of Retired Personnel), dated 24 January 2005 * Divorce decree, February * Divorce decree, August * Marriage Certificate, October FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he designated his daughter as his SBP annuitant when he retired from the Army in 2005. In May 2006, his daughter was diagnosed with medium level autism. This makes her incapable of taking care of herself independently. For the rest of her life she will be dependent on guardianship support. On October, he married Ms. L- - who has been so accepting and supportive of his daughter’s total needs. On 1 February 2017, he contacted the Defense Finance and Accounting Service (DFAS) and explained the need to change his SBP due to this life changing occurrence. DFAS told him he they could not change the annuitant and referred him to the Board. 3. A review of the applicant’s official records show: a. On 16 October 1979, the applicant enlisted in the Regular Army and served in various positions. b. On 31 January 2005, the applicant was honorably retired from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 25 years, 3 months, and 15 days of net active service. c. The applicant’s service records is void of a DD Form 2656 which would indicate an SBP election at the time of his retirement. 4. The applicant provides: a. Divorce decree showing the applicant and Ms. S- S- (first spouse) were married on April and divorced on February. The divorce decree is silent in regards to SBP. b. Divorce decree showing the applicant and Ms. K- S- were married on May and divorced on August. The divorce decree is silent in regards to SBP. c. DD Form 2656, dated 24 January 2005, showing the following in: (1) Section 6 (Federal Income Tax Withholding Information), item 14 (Marital Status) "Single." (2) Section 8 (Dependency Information) he had two dependent daughters: * K- N- S- (14 years of age at the time of application in 2017; date of birth in 2003 (18 years of age currently)), disabled "No" * T- R- S- (aged out at the time of application in 2017, former spouse child, date of birth in , disabled "No" (3) Section 9 (SBP Election) he elected child only coverage, and he did not have a spouse. 5. Marriage Certificate showing him and Ms. L- A- S- were married on October. 6. See REFERENCES below. 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. The applicant desires to swap his daughter for his current spouse. The applicant states that his daughter is disabled. 2. Survivor Benefit Plan dependent eligibility is designated according to dependent category (Spouse only; Children only; or Spouse and Children) not by person or name. Law provides for changes in elections only in the event of marriage/remarriage/divorce, change in dependent disability status, or during open seasons. 3. The applicant initially elected child only coverage and did not elect spouse coverage at the time of retirement because he was single (divorced). When he elected child only coverage, he indicated that his daughter was not disabled. The Board found insufficient independent corroborating evidence that the applicant’s daughter is disabled or that the applicant notified DFAS of the change in his daughter’s disability. Should the applicant obtain official documentation of his daughter’s disability, he may reapply to the Board. 4. The applicant remarried on October. Per law, if on the date of retirement, the member has no eligible spouse and elected for child only, the member may, within one year after marriage or remarriage, include the spouse with coverage previously elected for the child. There is insufficient evidence the applicant made such an election within one year of his remarriage. 5. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ? 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Department of Defense Financial Management Regulation, Volume 7b, states: a. On September 21, 1972, Public Law 92-425 established the SBP to provide a survivor benefit program for military personnel in retirement to complement the survivor benefits under Social Security laws. The Plan gives all retiring Uniformed Services retirees an opportunity to elect to have their retired pay reduced by a designated amount in order to provide their survivors an annuity payable after the retiree’s death. b. Standard Annuity Participants. The Plan applies to a person who is eligible to participate in the Plan under subparagraph 420301.A and who is married or has a dependent child when the member becomes entitled to retired pay. A member may elect coverage at the maximum level for a dependent child. c. If on the date of retirement, the member has no eligible spouse and elected for child only; the member may, within one year after marriage or remarriage, include the spouse with coverage previously elected for the child. d. The child is an eligible beneficiary only if the child is unmarried and incapable of self-support because of physical or mental incapacity, which existed before the 18th birthday or was incurred before age 22 while pursuing a full-time course of study. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170006122 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1