IN THE CASE OF: BOARD DATE: 15 June 2022 DOCKET NUMBER: AR20210014298 APPLICANT REQUESTS: reconsideration of his request for correction of his Survivor Benefit Plan (SBP) annuity base amount to "Full Retired Pay." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Letter, 25 August 2021 * Official Military Personnel File FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20180002732 on 11 October 2019. 2. The applicant states he requests reconsideration of his previous request for correction of his SBP annuity base amount to "Full Retired Pay" based on his service records submitted with this letter. He enclosed his Official Military Personnel File. 3. He was serving in the Regular Army in the rank/grade of colonel/O-6 at the time he completed his DA Form 4240 (Data for Payment of Retired Army Personnel) on 24 July 1980, showing in: * item 15 (Check one of the following to indicate the type of coverage you desire) – he elected "Spouse Only" * item 16 (If you checked 15a, b, or c, do you elect to provide an annuity based on the full amount of retired pay or on a reduced portion of retired pay) – he elected a reduced amount of $1,200.00, which noted the reduced amount is subject to cost of living increases in the same proportion as full retired pay * item 17 (Name of Spouse) – 4. He retired on 31 July 1980. He completed 28 years, 10 months, and 29 days of total active service. 5. His divorce decree from is not available for review. 6. His subsequent marriage certificate shows he married on 28 January 2008. His marriage license showing prior marriages is not available for review. 7. His DD Form 2656-6 (SBP Election Change Certificate), 6 February 2008, shows in: * item 7 (My Current Coverage is:) – Suspended Coverage * item 8 (I am Requesting a Change in Coverage Based on:) – he marked "Remarriage" and "Resume Existing Level of Coverage for My New Spouse" * item 9 (Place an X in the Appropriate Box to Indicate Your Election) – he marked "Resume Existing Coverage" * item 10 (If this is an initial election (or if increasing the level of coverage following remarriage), select the monthly amount of retired pay you wish to have the survivor annuity based on) – he marked "Full Retired Pay" * Section VI (Spouse and Child(ren) Information) – * Section VII (Member Signature) – the applicant's and his witness's signature, dated 6 February 2008 8. His Defense Finance and Accounting Service Retiree Account Statement, 2 December 2009, shows his gross pay as $6,171.00 and annuity base amount as $3,165.00 (his original annuity base amount of $1,200.00 and cost of living adjustments). The annuity payable is 55 percent of his annuity base amount, which is $1,741.28 ($3,165.00 multiplied by 55 percent). 9. His DD Form 2656-6 (SBP Election Change Certificate), 6 February 2018, is marked "Corrected Copy" in the top margin and shows in: * item 7 (My Current Coverage is:) – Suspended Coverage * item 8 (I am Requesting a Change in Coverage Based on:) – he marked "Remarriage" and "Increase existing level of coverage – up to full retired pay" * item 9 (Place an X in the Appropriate Box to Indicate Your Election) – he marked "Spouse Only" * item 10 (If this is an initial election (or if increasing the level of coverage following remarriage), select the monthly amount of retired pay you wish to have the survivor annuity based on) – he marked "Full Retired Pay" * Section VI (Spouse and Child(ren) Information) – * Section VII (Member Signature) – the applicant's and his witness's signature, dated 6 February 2018 10. On 11 October 2019, the ABCMR denied the applicant's request to correct his SBP coverage to reflect full retired pay, to provide an estimation for retroactive premiums, and to provide payment options. The Board determined relief was not warranted. Based on the evidence of record showing the applicant did not make a timely election to change his SBP coverage, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant's previous SBP election. 11. The Chester Telegraph article, "[Applicant], 92, ," 23 December 2021, reported the applicant's death on 22 November 2021. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, 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. Upon review of the applicant’s petition and available military records, the Board determined the applicant’s SBP records precisely reflect the choices he made at various stages of his life, including his 2008 choice to designate his newly acquired wife as his SBP beneficiary, with the annuity amount specified as the same amount he chose in 1980. Evidence shows the applicant’s attempt to increase the $1200 amount to “full amount” in 2018 was ineffective because it came so much later than the 1-year window that opened in 2008, triggered by his marriage to his second wife. 2. Additionally, The Board agreed, the applicant cannot cite to any substantial injustice in this case. His new wife will receive an SBP annuity (albeit at a lower amount) and the applicant has been on notice for many years that his surviving spouse may not receive as much income after he dies as he’d hoped, thus alerting him that he needed to make other arrangements (e.g., life insurance, commercial annuities, larger testamentary legacy to her, etc.) to bolster her financial security in her later years. Based on this, the Board found insufficient evidence that would merit relief. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20180002732 on 11 October 2019. 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, 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. 2. Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree, upon remarriage, to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to the first anniversary of remarriage). Changes must be made prior to the first anniversary of remarriage or the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date. 3. Title 10, U.S. Code, section 1454 (Correction of Administrative Errors), states the Secretary concerned may, under regulations prescribed under section 1455 of this title, correct or revoke any election under this subchapter when the Secretary considers it necessary to correct an administrative error. 4. Title 10, U.S. Code, section 1552 (Correction of Military Records: Claims Incident Thereto), states the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 5. Department of Defense Instruction 1332.42 (SBP) establishes policy, assigns responsibilities, and provides procedures for the administration of the SBP, Reserve Component SBP, Special Survivor Indemnity Allowance, and SBP Advisory Group. a. Paragraph 4.4a (General) states a spouse becomes ineligible as a beneficiary and coverage is suspended upon: (1) death of the spouse; or (2) divorce, dissolution, or annulment of marriage. b. Paragraph 4.4b (Remarriage after Retirement or Notification of Eligibility When Spouse Coverage is Suspended) states a covered participant with spouse or spouse and child coverage who does not have a current eligible spouse beneficiary (i.e., elected to participate in SBP or Reserve Component SBP but whose previous beneficiary is no longer eligible for reasons described in paragraph 4.4a(3)) may, within 1-year of remarriage to a new spouse: (1) default to resuming the same level of coverage in effect before remarriage; (2) elect not to provide coverage for the new spouse: or (3) elect to increase coverage upon remarriage if previously providing less-than- maximum coverage. (a) Such an election requires the member to pay an amount equal to the difference between the premium that would have been payable if the higher coverage had been in effect since becoming a participant in the SBP or Reserve Component SBP and the amount of premiums actually paid, plus interest. (b) The payment will be deposited. (c) The election is effective on the first anniversary of the marriage and is contingent upon any delinquent premium payments being made. (d) If payment for increased coverage is not made before the earlier of the member's death or the first anniversary of the marriage, then the newly acquired spouse is not covered at the increased amount. Coverage will revert to the previous less-than- maximum amount. c. Paragraph 8.3a (Reduced Base Amount) states a member who becomes eligible to receive retired pay may elect a reduced base amount, meaning an amount less than the full amount of retired pay to which he or she is entitled, with written concurrence of the member's spouse. The reduced base amount will be increased at the same time and by the same percentage as the gross retired pay may be increased. d. Paragraph 8.3b (Timing of Decision to Elect a Reduced Base Amount) states a member who becomes eligible to receive retired pay must make the decision to elect a reduced base amount on or before: (1) the first day he or she becomes eligible to receive retired pay for members in receipt of a Regular retirement or disability retirement; or (2) 90 days from notification of eligibility for members qualifying for a Non- Regular retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014298 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1