IN THE CASE OF: BOARD DATE: 12 October 2022 DOCKET NUMBER: AR20210014093 APPLICANT REQUESTS: participation in the Survivor Benefit Plan (SBP), spouse coverage, under the same sex marriage rules. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * U.S. Air Force DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * NGB Form 22 (Report of Separation ad Record of Service) * Marriage Certificate * Designation of Beneficiary * U.S. Air Force Retirement Points * U.S. Army DD Form 214 (Certificate of Release or Discharge from Active Duty) * 1993 Retired Reserve Order FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 after reading the SBP Briefing, she sees no mention of what soldiers and spouses in the LGBTQ community can do to elect the SBP benefit package. Their circumstances are impacted by the Supreme Court ruling which granted legal marriage to same sex spouses in June of 2015. They were unaware that we had one (1) year to apply for said benefits. When they wanted to apply for SBP, the deadline had passed, and they were unable to apply. They will celebrate 37 years together in September. Had they been able to legally marry, they would have done so in 1986. Had they been accorded the same rights and benefits of heterosexual married couples, they would have paid the 360 payments, by now, and been in the Paid-Up SBP coverage category-fully covered and protected. 3. The applicant was born on and turned 60 on . 4. She served in the U.S. Air Force from 7 July 1956 to 5 June 1960. 5. She entered the Army National Guard o 4 June 1974. She served in a variety of assignments, including active duty from August 1986 to August 1989, and she attained the rank of colonel (COL). 6. On 15 October 1993, the California Army National Guard published orders separating the applicant from the ARNG and transferring her to the Retired Reserve, effective 30 November 1993. 7. The applicant provides a marriage certificate reflective of her same sex marriage. The certificate is poorly scanned and emailed. The date of marriage appears to be (the only readable date shown in the bottom right corner of the certificate). 8. There is no evidence the applicant requested participation in the SBP within one year from 26 June 2013, to make a spouse election under 10 U.S.C. 1448(a)(3). 9. A person who was married to a same-sex partner upon becoming eligible to participate in the plan prior to June 26, 2013, and who had married that same-sex partner before June 26, 2013, shall have one year from June 26, 2013, to make a spouse election under 10 U.S.C. 1448(a)(3) 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 Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on public law, policy and regulation. One potential outcome was to grant relief based on when the Supreme Court granted legal marriage to same sex spouses’ benefits. However, upon review of the applicant’s petition and available military records, the Board determined there is insufficient evidence the applicant attempted to designate her current spouse as her beneficiary within one year of their marriage date. The Board found the applicant did not demonstrate an error or injustice occurred by a preponderance of evidence. Evidence in the record show the applicant did not submit a SBP election form to DFAS. The Board agreed the election form would have clarified how much she and her spouse had agreed to regarding coverage amounts and would have plainly identified the marriage date. In addition, because the applicant failed to submit to DFAS any documentation at all, it could be argued that the applicant has not exhausted her administrative remedies. 2. The Board noted, according to the applicant’s DD Form 149 that she discovered the alleged error or injustice in September 2106. However, the record shows the DD Form 149 was not submitted until 2021, five years after being aware of the oversight. Based on the preponderance of evidence the Board determined participation in the Survivor Benefit Plan (SBP), spouse coverage, under the same sex marriage rules is unwarranted. Therefore, the Board denied relief BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 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, United States 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. On June 26, 2013, the U.S. Supreme Court determined certain parts of Defense of Marriage Act (DOMA) of 1996 were unconstitutional. As a result of this decision, the Federal Government now recognizes same-sex marriages which are legally performed under state law. On September 5, 2013, the Department of Defense (DoD) issued implementing guidance extending Survivor Benefit Plan (SBP) coverage to same-sex spouses of military members and retirees. In short, same-sex marriages that are valid in the state where performed will be recognized as valid for SBP purposes. The implementing guidance does not apply to civil unions or domestic partnerships. It is the responsibility of the retiree to provide documentation of existence of valid marriage under applicable state law. The guidance issued at that time is still applicable to those retirees. a. On June 26, 2015, the Supreme Court determined that states are required to issue marriage licenses to two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Consequently, a valid marriage certificate issued by any state on or after June 26, 2015 will be recognized as valid for SBP purposes. b. The DoD guidance generally provides that effective June 26, 2013, any person who is married to a same-sex partner may participate in the SBP in the same manner as any other married person. This includes the requirement for spousal concurrence for certain elections. c. Any claims to SBP spouse coverage for same-sex spouses of eligible participants of the SBP for periods before June 26, 2013, are not valid as the Defense of Marriage Act was still the law and in effect prior to June 26, 2013. As a result, no SBP premiums for such coverage will be charged prior to that date. Further, no SBP annuity payments for such coverage will be paid for deaths occurring before that date. d. Effective from June 26, 2013, a person who becomes eligible to participate under 10 U.S.C. 1448 (a)(1) and is married to a same-sex partner shall have the SBP program applied as for any other married couple under section 10 U.S.C. 1448, including the requirements for spousal consent for less than full annuity coverage of the spouse. Effective June 26, 2015, there is no need to determine if any particular state permits same sex marriage. Any marriage license issued from a state is presumed valid. e. A person who was married to a same-sex partner upon becoming eligible to participate in the plan prior to June 26, 2013, and who had married that same-sex partner before June 26, 2013, shall have one year from June 26, 2013, to make a spouse election under 10 U.S.C. 1448(a)(3). Such person may not participate at less than maximum coverage described in 10 U.S.C. 1448(a)(3) without the concurrence of the person’s spouse unless they already had provided an annuity for a dependent child. If an election is not received on or before June 25, 2014, full spousal coverage shall be entered and the member shall be responsible for payment of premiums effective from June 26, 2013. f. A person who is married to a same-sex partner on June 26, 2013, and has insurable interest coverage under the SBP may terminate the insurable interest coverage and elect spouse coverage. This election must be received on or before June 25, 2014. g. A person who was not married upon becoming eligible to participate in the plan, but who married a same-sex partner before June 26, 2013, shall have one year from June 26, 2013, to make a spouse election under 10 U.S.C. 1448(a)(5). The election must be received on or before June 25, 2014, or the person shall be prohibited by law from making such election. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014093 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1