ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: January 14, 2020 DOCKET NUMBER: AR20170015562 APPLICANT REQUESTS: In effect, to have his Survivor Benefit Plan (SBP) coverage for his spouse started. 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), 9 July 2009 * Marriage License, 15 September 2015 * DD Form 2656-6 (SBP Election change certificate), 2 October 2015 * DD Form 2894 (Designation of Beneficiary Information), 2 October 2015 * DFAS (Defense Finance Accounting Service) letters, 13 January 2017 and 12 July 2017 FACTS: 1. The applicant states at the time of retirement he was single. He got married on 15 September 2015. He went to the Retirement Services Office (RSO) on 2 October 2015 and filled out the attached DD Form 2656-6 and DD Form 2894 to cover his wife with SBP. When he did not hear anything he called and checked with DFAS, which stated that they had nothing on him. The RSO resubmitted his request and DFAS denied it because he had passed his one year anniversary period. He requests this be corrected because he did all that was required in a timely manner and should not be penalized. 2. The applicant provides: * DD Form 2656, dated 9 July 2009 that shows he was single with one dependent child; he elected coverage for child only at full gross pay * Marriage License, 15 September 2015 which shows he was married to his wife X___ on 15 September 2015 * DD Form 2656-6, dated 2 October 2015 which shows his current election as no coverage; requested coverage due to remarriage for spouse only for full retired pay level coverage * DD Form 2894, dated 2 October 2015 showing his spouse X X. X at 100% share * DFAS letters, dated 13 January 2017 and 12 July 2017 stating they could not process his request due to not receiving his request within one year of marriage 3. A review of the applicant’s service records shows the following: a. He was born on xx X 1955. b. He enlisted in the Regular Army on 13 January 1993. c. He was honorably retired on 29 August 2009, due to permanent disability. d. Orders 177-0002, dated 26 June 2009 shows he was placed on the retired list on 30 August 2009 due to a permanent disability. e. On 9 July 2009, he completed a DD Form 2656 (data for Payment of Retired Personnel). He indicated that he was single but had a grandson as a dependent (he was a full guardian). He elected SBP coverage for children only, based on the full amount. f. He and his spouse were married on 17 September 2015. g. On 2 October 2015, he completed a DD Form 2656-6, an SBP Election Change Certificate. He indicated that his current coverage is "No Coverage" and he is requesting a change in coverage based on remarriage. He elected to increase existing level of coverage and completed Section IV, wherein he elected spouse coverage based on the full gross pay. The SBP Election Change Certificate states, or remarriage, a member whose spouse coverage is suspended due to death of the spouse or divorce, has three options upon remarriage: * Resume existing level of coverage for my new spouse * Increase existing level of coverage - up to full retired pay * Not resume any SBP coverage for new spouse h. On 13 January 2017, DFAS wrote to him in response to his recent inquiry. DFAS stated they could not process his SBP request because his original election received on 9 January 2017 was invalid. His request was invalid because DFAS did not receive the documents with 1 year of his marriage. i. On 12 July 2017, DFAS wrote to him in reply to the request they received from him on 17 January 2017. DFAS stated they were unable to add his spouse to his SBP. He would have had to notify them prior to his first year anniversary in order for his spouse to have been eligible. Occasionally, Congress approves an Open Season enrollment period that would allow members to add a spouse to their SBP. If this opportunity becomes available, he would be informed. 4. 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 one year after the date on which that person marries or acquires that dependent child. (The Defense Finance and Accounting Service (DFAS) interprets the phrasing of the first sentence of this section to read, “…is not married or has no dependent child." BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board voted to grant relief to the applicant by allowing him to add his new spouse, based on the supporting documentation that shows the applicant submitted his DD Form 2656 (SBP Coverage for Spouse) 1 month after marriage. 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 the evidence presented is 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 applicant changed his SBP election to spouse only on 2 October 2015, and the request was received and processed by the appropriate office in a timely manner. X 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. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. An election, once made, was irrevocable except in certain circumstances. This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. 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 one year after the date on which that person marries or acquires that dependent child. (The Defense Finance and Accounting Service (DFAS) interprets the phrasing of the first sentence of this section to read, “…is not married or has no dependent child." //NOTHING FOLLOWS//