IN THE CASE OF: BOARD DATE: 15 February 2023 DOCKET NUMBER: AR20220007482 APPLICANT REQUESTS: * reconsideration for enrollment in the Survivor Benefit Plan (SBP) for his current spouse * a personal appearance hearing before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10. U.S. Code, Section 1552) * District Court Final Decree of Divorce, 22 August 2006 (only pages 1 and 33 of 33) * Marriage Certificate, 15 September 2006 * DD Form 2656-6 (SBP Election Change Certificate), 12 October 2022 FACTS: 1. The applicant states: a. At his retirement center processing, no detailed instructions or class was given to retirees. Instead, they were informed to sign packets distributed and no opportunity was given to ask questions. Later, he took time to read the documents and returned to enroll his spouse, but he was informed that his packet was already submitted. b. He just learned from his formal request for assistance that an SBP open season occurred in 2005. He was not informed nor was any announcement made to retirees. He most certainly would have enrolled his current spouse in the SBP had he been afforded the opportunity. After numerous attempts and inquires to obtain enrollment, he enlisted the assistance of his U.S. Senator. c. His DD Form 149 is the required document necessary for submission for reconsideration for enrollment of his current spouse in the SBP. He was never informed of this form by any agency during the numerous inquiries and attempts for enrollment. 2. In the applicant's Addendum to DA Form 2339 (Application for Voluntary Retirement), 1 July 1988, he acknowledged: "I have been briefed concerning the Survivor Benefit Plan. I understand that I will automatically be in the plan and pay the full cost of coverage for my wife and children, if applicable, unless I submit an election to the contrary prior to my retirement." 3. The Headquarters, Fort Sam Houston, letter, 1 July 1988, notified the applicant's then-spouse, . , that her husband requested retirement from military service effective 30 June 1989. a. His then-spouse was advised that: (1) When he retires, he may participate in the Uniformed Services SBP and stated the SBP provides an inflation-protected monthly income (annuity) to survivors of deceased military retiree participants. As retired pay increases, the annuity and its associated costs increase at the same ratio. This protection, offered at a reasonable cost, is deducted from his retired pay. At death, her husband's retired pay ceases; however, if he elects SBP at his retirement, his designated beneficiaries will continue to receive a portion of that retired pay in the form of a monthly SBP annuity. (2) The SBP options were described in detail. (3) The decision he makes regarding his SBP election is irrevocable; however, by law he may not elect certain options unless she agrees to that choice in writing. Under the law, should he choose one of these options and she disagrees with that choice, his SBP election will automatically be established at full spouse or full spouse and child coverage, depending on his original choice. b. His then-spouse acknowledged the letter and signed the form on 3 March 1989. 4. His DD Form 1172 (Application for Uniformed Services Identification Card Defense Enrollment Eligibility Reporting System Enrollment), 22 February 1989, lists his then- spouse and their date of marriage as 23 February 1984. 5. His then-spouse's U.S. Army Forces Command Form 1004-2-R (Statement of Spousal Concurrence), 2 March 1989, shows she concurred with his SBP election of "No Survivor Coverage for Spouse or Children." The form was signed by his then- spouse, a witness, and a notary public on 2 March 1989. 6. His DA Form 4240 (Data for Payment of Retired Army Personnel), 4 April 1989, shows in: * item 8a (Marital Status) – he marked "Married" * Part II (Beneficiaries for Unpaid Retired Pay or Gratuity Pay) – his then-spouse's name * Part III (SBP Election) – he marked "I Decline Coverage" * Part VI (Certification) – his signature dated 4 April 1989 and the signature of a witness * Part VII (SBP Certificates) (Required when married member does not elect full coverage or declines coverage for spouse. Note: Your SBP election is permanently irrevocable. The law requires that information of a non-election or reduced coverage be provided to your spouse.) – no entries 7. He retired on 30 June 1989. 8. His Certificate of Holy Union of Matrimony, 15 September 2006, shows his marriage to . on 14 September 2006. 9. The Army Review Boards Agency letter to the applicant, 7 October 2022, requested that he provide the divorce decree for his first marriage and a DD Form 2656-6 (SBP Election Change Certificate). 10. On 12 October 2022, the applicant provided the following documents: a. The first and last page of the District Court Final Decree of Divorce, 22 April 2006. The pages he provided make no reference to the SBP indicating whether he was required to provide former spouse SBP coverage. b. His DD Form 2656-6 (SBP Election Change Certificate), 12 October 2022, shows he requested to change his SBP election from "No Coverage" to "Spouse Only" based on remarriage. (1) The instructions in Section III (Conditions that Trigger Eligibility to Change Coverage) for remarriage state a member whose spouse coverage is suspended due to death of the spouse or divorce, has the following options upon remarriage: * resume existing level of coverage for the new spouse * increase existing level of coverage – up to full retired pay * not resume SBP coverage for the new spouse * select coverage for the new spouse if the current coverage is former spouse coverage (2) He marked "Resume existing level of coverage for my new spouse." ? 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 request, the former service members 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 applicants petition and available military records, the Board determined applicant declined to participate in the SBP when he retired. His then-spouse concurred after both parties signed notices to their respective awareness. The applicant, now that he is remarried with minor dependents wishes to reverse his previous decision from nearly 34 years ago. The Board determined there are no issues of unfairness, injustice, or bad error. The Board agreed the applicant simply ‘looking ahead’ as a result of his changed circumstances. The Board noted that under the NDAA 2023 which provides an available option for the applicant’s situation, relief is not warranted. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 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. The DFAS website provides guidance regarding the SBP, Reserve Component SBP, and Retired Serviceman's Family Protection Plan. SBP elections are made by category, not by name. Options include "Spouse Only," "Spouse and Child(ren)," "Former Spouse," "Child(ren) Only," "Natural Interest Person," "No Beneficiary," and "Decline." a. An election to participate in these programs is generally made at the time of retirement, although some situations allow a retiree to add coverage after retirement. In most cases, costs to participate are deducted from the retiree's monthly pay and are based on the amount of coverage a retiree elects. b. The SBP election made at the time of retirement is very difficult to change. There are only a few circumstances in which it is possible to change or alter a previously made election. If a member has eligible beneficiaries at the time of retirement and elects not to have them covered, the member will not be able to change that election in the future. If the member is married and declines spouse coverage, the member cannot elect coverage for a later spouse. If the member has eligible children at retirement and declines coverage, the member cannot add coverage for a child born or acquired after retirement. 2. Public Law 108-375, enacted 28 October 2004, established an open enrollment season from 1 October 2005 through 30 September 2006. It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so. (Extensive publicity was published in Army Echoes. Army Echoes is the U.S. Army's official newsletter for Retired Soldiers, surviving spouses, and their families.) 3. 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. 4. The National Defense Authorization Act for Fiscal Year 2023 includes an SBP open season. The SBP open season began on 23 December 2022 and ends on 1 January 2024. a. The SBP open season allows for retirees receiving retired pay, eligible members, or former members awaiting retired pay who are currently NOT enrolled in the SBP or Reserve Component SBP to enroll. For a member who enrolls during the SBP open season, the law generally requires that the member will be responsible to pay retroactive SBP premium costs that would have been paid if the member had enrolled at retirement (or enrolled at another earlier date, depending on the member's family circumstances). For retirees receiving pay, enrollment does require paying the premiums plus interest for the period since the date they were first eligible to enroll, as well as the monthly premiums moving forward. b. The SBP open season also allows eligible members and former members who are currently enrolled in either the SBP or Reserve Component SBP to permanently discontinue their SBP coverage. The law generally requires the covered beneficiaries to concur in writing with the election to discontinue. Previously paid premiums will not be refunded. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007482 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1