IN THE CASE OF: BOARD DATE: 16 December 2021 DOCKET NUMBER: AR20210012248 APPLICANT REQUESTS: * in effect, correction of his record to show he elected spouse coverage under the Survivor Benefit Plan (SBP) * a personal appearance hearing before the Board 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) * State Marriage License, 28 December 1981 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Letter, 14 December 2017 * Defense Finance and Accounting Service (DFAS) Letter, 16 November 2019 * Applicant's Letter, 9 March 2020 * Army Review Boards Agency Letter, 12 January 2021 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 his records erroneously show he is single. The correction should be made because his wife will be left with no support in the event something happens to him. He wrote his first letter in March 2020 and was asked to explain the delay in his request; respectfully, he cannot. 3. His DD Form 1966 (Application for Enlistment – Armed Forces of the United States), 13 February 1981, shows his marital status as divorced. This form also shows his mother's name as M____ with an address in B, XX. 4. His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), 13 February 1981, shows he enlisted in the U.S. Army Reserve under the Delayed Entry Program on 13 February 1981 for a period of 6 years and a commitment to enlist in the Regular Army on 5 May 1981. 5. His State Marriage License, 28 December 1981, shows his marriage to S____ on that date. 6. Item 9 (Relationship and Age of All Persons Who Are Dependent upon Me for Support Are Recorded Below) of his DA Form 3286 (Statements for Enlistment), 4 January 1985, shows he listed his wife, age 38; and three children, ages 2, 12, and 18. 7. Item 9 of his DA Form 3286, 2 July 1990, shows he listed his wife, age 44; and three children, ages 6, 17, and 18. 8. Item 9 of his DA Form 3286, 26 January 1996, shows he listed his wife, age 43; and two children, ages 14 and 17. 9. His Servicemembers' Group Life Insurance Election and Certificate, 19 November 1998, shows his beneficiary as only his daughter, A____. 10. Section IV (Personal and Family Data) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows his spouse's place of birth as Xxxxxxxx; however, his number of dependents and home of record/address are blank. He last reviewed his DA Form 2-1 on 11 January 2000. 11. His Enlisted Record Brief, 3 January 2001, shows his marital status as married and his wife's address as L, XX. 12. Headquarters, U.S. Army Europe, Heidelberg Transition Center, Orders 249-1, 6 September 2001, retired him effective 31 December 2001 and placed him on the Retired List effective 1 January 2002. 13. Headquarters, U.S. Army Europe, Heidelberg Transition Center, Orders 249-2, 6 September 2001, assigned him to the U.S. Army Transition Center, Heidelberg, Germany, effective 11 October 2001. The additional instructions state he and his spouse (if applicable) were scheduled to attend a mandatory SBP briefing on 13 September 2001. Early/concurrent travel of command-sponsored dependents was authorized; however; his dependents are shown as "NA [not applicable]." 14. His DA Form 2656 (Data for Payment of Retired Personnel), 13 September 2001, shows in: * item 14 (Marital Status) – he marked "Single" * item 25 (Dependent Children) – he listed his son with a date of birth of 3 XXX 19XX and a daughter with a date of birth of 29 XXXXXXXX 19XX * item 26 (Beneficiary Category(ies) – he elected "C" (I Elect Coverage for Children Only" and marked "Do Not Have a Spouse" * item 27 (Level of Coverage) – no entries 15. He retired on 31 December 2001. His DD Form 214 shows in: * item 8b (Station Where Separated) – Transition Center, Heidelberg, Germany * item 19a (Mailing Address after Separation) – B, XX * item 19b (Nearest Relative) – M___ B, XX 16. There is no documentary evidence showing his marital status at the time of his retirement. 17. The VA letter, 14 December 2017, shows a summary of the benefits he is receiving from the VA. 18. The DFAS letter, 12 September 2019, notified the applicant that DFAS was unable to process his SBP request because they were missing information. DFAS stated they received his marriage certificate dated 28 December 1981; however, the DD Form 2656 he submitted prior to his retirement cites his marital status as single. DFAS instructed him to complete a DD Form 2656-8 (SBP – Automatic Coverage Fact Sheet) if he was married upon retirement. 19. The DFAS letter, 16 November 2019, responded to his request and requested additional information. DFAS stated they received his DD Form 2656-8 with his spouse listed; however, DFAS cannot add his spouse at this time. Since he was married at the time of his retirement and did not list his spouse and did not choose spouse coverage, he cannot add her at this time. DFAS instructed him to apply to the ABCMR if he would like to try to add his spouse effective at retirement and have orders stating his spouse is eligible effective at retirement. 20. In his letter to the Army Review Boards Agency, 9 March 2020, he states: a. He was going through his records in October of last year when he discovered he was listed as single. He wrote a letter to DFAS and got a reply which he included with this letter along with his marriage certificate. b. He was serving in the Middle East in Qatar and went to Heidelberg, Germany, to out-process from the Regular Army. He believes the moment the error occurred was after 11 September 2001 and the clerk preparing his discharge paperwork was distracted with questions. He was worried that he was going to another conflict before he retired. He can't remember reading what he signed because he was very nervous and had to return to Qatar. 21. The Army Review Boards Agency Congressional Liaison and Inquiries letter, 12 January 2021, provided the applicant with a DD Form 149 and requested that he be as specific as possible and tell the ABCMR what form(s) to correct or what injustice to rectify. 22. The Defense Retired and Annuitant Pay System shows the applicant's original election as "Child Only" coverage on 1 January 2003. His current election is shown as "No Beneficiary" effective 1 July 2005 and his Arrears of Pay Beneficiary was updated on 3 June 2020 to show M____. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. The Board found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The DA Form 2656 signed by the applicant on 13 September 2001 clearly indicates he was single at the time and he provided no spouse information in the section clearly designated for that purpose. The Board found that the evidence does not clearly confirm that he was married at the time, and without additional evidence confirming his marital status, there is an insufficient basis for granting relief in this case. The Board further noted that granting relief in this case could result in a financial hardship for the applicant as he would owe SBP premiums for spouse coverage dating back to the date of his retirement, which would result in a significant debt. Based on a preponderance of evidence, the Board determined the applicant's request to add his spouse to his SBP coverage should be denied. 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. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's Family Protection Plan and 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. The election must be made before the effective date of retirement or else coverage defaults to automatic spouse coverage. 4. Title 10, U.S. Code, section 1448(a)(3)(A), requires spousal concurrence in any election not to participate in SBP, to provide an annuity for a spouse at less than the maximum level, or to provide an annuity for a dependent child but not for the member's spouse. 5. Militarypay.Defense.gov states the SBP annuity is determined by the base amount elected. The base amount may range from a minimum of $300 up to a maximum of full retired pay. The SBP premiums for spouse coverage is 6.5 percent of the chosen base amount. Costs for child coverages are based on the age of the service member and the age of the youngest child at the time of election. Costs for child coverage stop when all children are no longer eligible to receive payments. The monthly costs for child coverage is based per $1,000 of covered retired pay. Example: If the service member is age 50 and the youngest child is 14 years of age at the time of retirement, the cost per $1,000 of covered retired pay is $2.90. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012248 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1