ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 December 2019 DOCKET NUMBER: AR20180004755 APPLICANT REQUESTS: designating his spouse as the beneficiary of his Survivor Benefit Plan (SBP). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * February 2019 Retiree Account Statement * Certificate of Marriage 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 was a widower when he retired from the Army on 30 September 2012. Consequently, at the time, he designated his only child, X__ Jr., as his SBP beneficiary. He and his spouse were both unaware that they were required to change their SBP within one year of getting married. They continued to maintain separate households to reduce friction between their high-school aged sons. 0ln the intervening years, he and his spouse both forgot to change their beneficiaries. Consequently, she continued to pay premiums on her former husband and he paid premiums on his son. They discovered that they had not changed their beneficiaries on 25 January 2018 and the following week on 2 February 2018, they traveled nearly four hours to Fort Hood, TX to the retirement services office (RSO) to attempt to correct the oversight. The Fort Hood RSO informed him that he would have to submit a request to the Army Review Boards Agency requesting an exception to policy to make a beneficiary change to his SBP since he did not change his beneficiary prior to his one- year wedding anniversary. He is willing to reimburse any premiums required to make current his SBP beneficiary. He requests the replacement of his son with his spouse, as his SBP beneficiary. 3. Review of the applicant's service records shows: a. He executed an oath of office as a Reserve commissioned officer on 2 May 1988. Following his appointment as a commissioned officer, he entered active duty on 30 September 1988. b. He served in a variety of stateside or overseas assignments and he was promoted to colonel (COL). c. On 31 May 2012, in connection with his upcoming retirement, he completed a DD Form 2656 (Date for Payment of Retired Personnel). He indicated he was not married but had a dependent child (born in 1998, not disabled). He elected "child(ren) only" SBP coverage based on the full amount of gross pay. d. He retired on 30 September 2012 and he was placed on the retired list in his retired grade of COL on 1 October 2012. e. He married X__ on 27 November 2013. f. There is no evidence he submitted a request to change his SBP election from child to spouse within one year of his marriage. 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 relief was warranted. Board members voted to grant relief out of equity. Based upon the facts and circumstances in the case, the Board concluded that the applicant clearly did not know he had to change his election within 1 year of his marriage. As such, the Board found that the applicant was not properly trained on the requirements and that lack of training creates an injustice which warrants a correction to his record. 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 showing: * he timely submitted the appropriate form to change his Survivor Benefit Plan coverage from "children" to "spouse" coverage within 1 year of his marriage * the Defense Finance and Accounting Service received, accepted, and processed his election, and retroactively charged him appropriate premiums within 1 year of his marriage 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. Since its creation, it has been subjected to a number of substantial legislative changes. 3. 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." 4. Title 10, U.S. Code, section 1447(11)(A) states dependent children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22 if still in school. A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 22 if a full time student). NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20180004755 3 1