ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 August 2021 DOCKET NUMBER: AR20210007452 APPLICANT REQUESTS: correction of his records to show he elected Survivor Benefit Plan (SBP) coverage for his spouse. 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) * Certificate of Marriage, 15 August 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 October 2009 * Defense Finance and Accounting Service (DFAS) Letter, 28 August 2018 FACTS: 1. The applicant states his spouse should have been listed as his SBP beneficiary when he retired from the Army National Guard of the United States. He married on 15 August 2009, approximately 2 months before he retired. He provided a copy of the marriage certificate to his unit; however, it was not further submitted to DFAS for processing. DFAS denied his request to correct this error. 2. On 25 March 2005, he was serving on active duty in the South Carolina Army National Guard Active Guard Reserve Program in the rank/grade of major/O-4. 3. On 25 March 2005, he remarried. Item 6 (Number of This Marriage) of his marriage certificate shows "2." 4. His Defense Enrollment Eligibility Reporting System record shows he was divorced from his second spouse on 31 August 2006. 5. His DD Form 2656 (Data for Payment of Retired Personnel), 22 June 2009, shows in: * item 4 (Rank/Pay Grade) – lieutenant colonel/O-5 * item 14 (Marital Status) – married * item 25 (Dependent Children) – the names of three children * item 26 (Beneficiary Category(ies) – "I Elect Not to Participate in SBP" * item 32 (Spouse Concurrence) – no entry 6. On 15 August 2009, the applicant again remarried. Item 5 (Number of This Marriage) of his marriage certificate shows "3." 7. On 31 October 2009, he retired. His DD Form 214 shows in: * item 2 (Component) – Army National Guard of the United States * item 12c (Net Active Service This Period) – 19 years, 6 months, and 22 days * item 12d (Total Prior Active Service) – 2 years and 19 days * item 23 (Type of Separation) – Retirement * item 25 (Separation Authority) – Army Regulation 600-8-24, paragraph 6-13c(1) * item 28 (Narrative Reason for Separation) – Sufficient Service for Retirement 8. On 9 July 2018, DFAS denied his request for SBP spouse coverage. The DFAS letter states that any correction of record must be initiated through his branch of service. He was provided a DD Form 149 and further advised that members of the Army Reserve/National Guard should contact their respective headquarters for assistance. 9. On 28 August 2018, DFAS advised the applicant's Congressional representative that the applicant's SBP request was denied because the applicant did not add his spouse within 1 year of marriage. The DFAS letter states: * the applicant stated he did not receive proper counseling regarding SBP * the applicant divorced on 31 August 2006 * because he was single at the time of his SBP election on 22 June 2009, spousal concurrence was not required * he remarried on 15 August 2009 * he retired on 1 November 2009 10. The email from the DFAS Financial Management Analyst, dated 10 August 2021, subject: ABCMR Verification Request, stated that the one-year rule to add a spouse does not apply if the member was married at retirement. “He should have automatic SBP if a valid election was never received at DFAS.” BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The applicant did not provide his divorce decrees as evidence. Without the divorce decrees, the proper interest of the applicant’s SBP is not available for the Board to review. Therefore, the Board determined there is insufficient evidence to grant relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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. Public Law 92-425, the Survivor Benefit Plan, enacted 21 September 1972, 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. Changes in SBP options are not authorized except in specific instances or as authorized by law. 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 1 year after the date on which that person marries or acquires that dependent child. 3. Department of Defense Instruction 1332.42, enclosure 3, paragraph 7, provides that a member who does not have a spouse or dependent child when the member becomes eligible to participate and who later marries or acquires a dependent child may elect to participate in the SBP by submitting a signed, written election that is received by the Secretary concerned within the 1-year period after acquiring the first spouse or dependent child. An election under this paragraph is irrevocable unless otherwise provided by law. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007452 1 1