ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 July 2020 DOCKET NUMBER: AR20180005591 APPLICANT REQUESTS: to add his wife to his Survivor Benefit Plan (SBP). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Orders, U.S. Army Human Resources Command (HRC), dated 19 October 2015 * Marriage Certificate, State of Maryland, dated 13 August 2016 * Marriage Record, State of Maryland, dated 13 August 2016 * DD Forms 2656 (SBP Election Change Certificate), dated 14 February 2018 and 19 December 2019 * Letter, Defense Finance and Accounting Service (DFAS), U.S. Military Retired Pay, dated 22 February 2018 REFERENCES: 1. 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 Survivor Benefit Plan (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 1 year after the date on which that person marries or acquires that dependent child. 2. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members. 3. Public Law 95-397, the Reserve Component Survivor Benefit Plan (RCSBP), enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in Survivor Benefit Plan (SBP)), to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does not occur before age 60, the RCSBP costs for Options B and C are deducted from the member's retired pay (costs for Option C being the more expensive). Once a member elects either Options B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in RCSBP – it automatically converts to SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. 4. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of Option C. The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-year letter. 5. Title 10, U.S. Code, section 1448(b)(3), incorporates the provisions of the USFSPA relating to the SBP. It permits a person to elect to provide an annuity to a former spouse. Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce. The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce. 6. Title 10, U.S. Code, section 1450(f)(3)(A), permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. The request from the former spouse of the person has to be received within 1 year of the date of the court order or filing involved. 7. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of Option C. The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-year letter. FACTS: 1. The applicant states that when he originally filed for SBP coverage, a lady on the telephone said he would have to wait until he had been married a year to enroll his new wife in SBP. He retired on 17 October 2015. He married on 13 August 2016. He was checking his Retiree Account Statements to see when the deductions would be started. His Retiree Account Statements show her as my beneficiary only. His first application could not be found and the second application was denied. 2. His records contain his HRC memorandum, dated 6 March 2008, subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), notifying him that he completed the required years of qualifying Reserve service and is eligible for retired pay on application at age 60. He was advised that the Reserve Component Survivor Benefit Plan (RCSBP), in which he was entitled to participate, is his sole means of protecting his retired pay entitlement. Public Law 106-398, dated 30 October 2000, requires that upon receipt of this letter, a qualified Reserve Component member who is married will automatically be enrolled in the RCSBP under Option C (Spouse and Child(ren) Coverage) based on full retired pay, unless spouse concurrence is provided to allow one of the following elections: * Option A – defer enrollment until age 60 when he applies for retired pay * Option B – enroll and pay an annuity when he would have reached age 60 * enroll spouse or spouse and chlld(ren) at less than the maximum level * enroll child(ren) only * Option C – enroll and pay an annuity immediately upon his death) but – * enroll spouse or spouse and child(ren) at less than the maximum level * enroll children only 3. His records contain no evidence showing he made an election upon receipt of his 20-year letter. 4. His DD Form 2656 (Data for Payment of Retired Personnel), dated 11 January 2015, shows: * he did not elect any beneficiary category and marked "Do Not Have Dependent Children" * marked "Do Not Have a Spouse" * marked "Do Not Have Eligible Dependents under the Plan" 5. HRC Orders C10-599397, dated 19 October 2015, retired him and placed him on the Retired List effective 17 October 2015. 6. His marriage certificate and marriage record show he married on 13 August 2016. His marital status at the time of his marriage was divorced. 7. His DD Form 2656-6 (SBP Election Change Certificate), dated 14 February 2018, shows in: * item 7 (My Current Coverage is) – he marked "Spouse Only" * item 8 (I am requesting a change in coverage based on) – he marked "Marriage" * item 9 (Requested Change to Coverage) – he marked "Spouse Only" 8. On 22 February 2018, U.S. Military Retired Pay, DFAS, informed him that they were unable to add his spouse to his SBP. He was advised that he would have had to notify DFAS prior to his first-year anniversary in order for his spouse to have been eligible. 9. The applicant provided a DD Form 2656-6, dated 19 December 2019, showing in: * item 7 – he marked "No Coverage" * item 8 – he marked "Marriage" * item 9 – he marked "Spouse Only" BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that full relief was warranted. The Board found sufficient evidence that the applicant intended to add SBP coverage for his current spouse within one year of their 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 reflecting that: 1. the applicant timely submitted a DD Form 2656-6 within one year of his 13 August 2016 marriage to his current spouse, and 2. premiums should have been deducted starting “on the first anniversary of the marriage” in accordance with Section III, paragraph 8 of the DD Form 2656-6.2. 8/10/2020 X CHAIRPERSON 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. ADMINISTRATIVE NOTES: not applicable. //NOTHING FOLLOWS//