ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 August 2019 DOCKET NUMBER: AR20180004971 APPLICANT REQUESTS: his wife be made the primary beneficiary of his Survivor Benefit Plan (SBP) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 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 when he completed his SBP application it was explained to him that both his spouse and his daughter would be beneficiaries for his SBP. He recently discovered and was told that only his daughter was listed as the primary beneficiary and not his wife. His daughter is above the age to receive the benefit. He respectfully asks that his spouse be listed as the primary beneficiary of his SBP. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 27 July 1977 and retired on 30 June 1995. b. In conjunction with his retirement, he completed a DD Form 2656 (Data for Payment of Retired Personnel), dated 19 May 1995, in which he indicated he had a spouse and three dependent children. He elected coverage for “children only.” His spouse concurred with his election of less than full coverage. Both applicant and his spouse signed the form in the presence of a Retirement Services Officer. 4. A grant of relief would create, at a minimum, an arrearage of over twenty-four years in SBP spouse premiums. 5. By law, a person may elect not to provide coverage for a spouse, if the spouse concurs. A standard annuity election is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. 6. Periodically, Congress passes laws that establish Open Seasons which allow SBP enrollment or changes to SBP participation. Open Seasons are extensively publicized in Army Echoes. Two such Open Seasons have occurred since applicant and his spouse made their original election. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the applicant submitting a prior SBP election on 19 May 1995, where he elected “children only” coverage, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the SBP coverage. 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 three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (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. Title 10, U.S. Code, section 1448 governs the Survivor Benefit Plan. a. Sub-paragraph a.1. Eligible participants.—The program established by this subchapter shall be known as the Survivor Benefit Plan. The following persons are eligible to participate in the Plan: (A) Persons entitled to retired pay, and (B) Persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age. b. Sub-paragraph a.2. Participants in the plan.—The Plan applies to the following persons, who shall be participants in the Plan: (A) Standard annuity participants.— A person who is eligible to participate in the Plan under paragraph (1)(A) and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the first day for which he is eligible for that pay; and (B) Reserve-component annuity participants. c. Sub-paragraph a.3. Elections.— (A) Spousal consent for certain elections respecting standard annuity. A married person who is eligible to provide a standard annuity may not without the concurrence of the person’s spouse elect not to participate in the Plan, or to provide an annuity for the person’s spouse at less than the maximum level; or to provide an annuity for a dependent child but not for the person’s spouse d. Sub-paragraph a.4. Irrevocability of elections.— (A) Standard annuity.— An election under paragraph (2)(A) is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. (B) Reserve-component annuity.— An election under paragraph (2)(B) is irrevocable if not revoked before the end of the 90-day period referred to in that paragraph. 3. Periodically, Congress passes laws that establish Open Seasons which allow SBP enrollment for those not yet participating or changes for those not participating to the fullest extent possible. Public Law 105-261, enacted 17 October 1998, established an Open Season period from 1 March 1999 to 29 February 2000. Public 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005 to 30 September 2006. Both of these Open Seasons were extensively publicized in Army Echoes to ensure all retirees were informed of their existence and the opportunity to enroll or increase their level of coverage. ABCMR Record of Proceedings (cont) AR20180004971 3 1