IN THE CASE OF: BOARD DATE: 27 October 2021 DOCKET NUMBER: AR20210012864 APPLICANT REQUESTS: correction of his records to show he changed his Survivor Benefit Plan (SBP) coverage election to spouse-only within 1 year of his marriage. 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 Certificate of Live Birth, 13 February 1963 * Department of Military and Veterans Affairs Adjutant's Office, Commonwealth of Pennsylvania, Memorandum (Notification of Eligibility for Retired Pay at Age 60), 10 February 2000 * DD Form 1883 (SBP Election Certificate), 28 February 2000 * National Guard Bureau (NGB) Form 55b (Honorable Discharge), 1 April 2000 * State Certificate of Marriage, 27 June 2001 * NGB Form 23A (Army National Guard (AGR) Current Annual Statement) 2 November 2020 * Social Security Card 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: a. He married; however, he did not elect SBP coverage for his wife within the 1-year time requirement. He was not aware of, nor was he counseled about the 1-year requirement before he was discharged from the military. b. He was single when he made his Reserve Component SBP (RCSBP) election for children-only coverage. He later married but did not elect coverage for his spouse within 1 year of his marriage. He understands there is a cost for both RCSBP coverage and that RCSBP will convert to SBP coverage when he starts to collect his retired pay. 3. His Servicemen's Group Life Insurance Election and Certificate Form 8286, 28 April 1996, shows his spouse as H____ and two children as beneficiaries of his insurance proceeds. 4. His divorce decree from H____ is not in evidence for review. 5. The Department of Military and Veterans Affairs Adjutant's Office, Commonwealth of Pennsylvania, memorandum (Notification of Eligibility for Retired Pay at Age 60), 10 February 2000, notified the applicant that, having completed the required years of service, he will be eligible for retired pay upon application at age 60. 6. His DD Form 1883 (SBP Election Certificate), 28 February 2000, shows he elected SBP children-only coverage and marked "No" to the question "Are you married?" 7. His State Certificate of Marriage, 27 June 2001, shows his marriage to M____ on 21 June 2001. 8. His NGB Form 22 (Report of Separation and Record of Service) shows he was honorably separated from the Pennsylvania Army National Guard and transferred to the Retired Reserve on 1 April 2000. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, regulatory guidance and public law. The Board considered the applicant’s statement, his military service record and documents provided by the applicant. Evidence in the records show the applicant was not married when he elected his SBP in February 2000. The applicant was married in June 2001. There is no evidence the applicant attempted to change the SBP election during the period in which he was allowed. The Board cannot assume he was not properly counseled as SBP elections. Based on governing regulations and public law the Board does not have the authority to make exceptions to public law. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XX XXX 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. Public Law 92-425, the SBP, 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. A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member. 3. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 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, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Once a member elects either option 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 the RCSBP. The RCSBP coverage automatically converts to SBP coverage upon retirement. 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 1 year after the date on which that person marries or acquires that dependent child. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012864 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1