IN THE CASE OF: BOARD DATE: 13 September 2023 DOCKET NUMBER: AR20220010639 APPLICANT REQUESTS: correction of his records to show he made a Survivor Benefit Plan (SBP) election for spouse coverage within 1 year of his October 2020 marriage APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Marriage Certificate, 2 October 2020 * DD Form 2656-6 (SBP Election Change Certificate), 29 April 2022 FACTS: 1. The applicant states at the time they were told to wait one year before he could add his spouse. They went past one year, and he would like to add his spouse. 2. Review of the applicant’s service records shows: a. He was born in . He served in the Illinois Army National Guard from 23 March 1983 to 6 November 2003. He entered active duty in the Active Guard Reserve (AGR) program, as a member of the ARNG, on 29 June 1987. b. On 11 April 2000, ILARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). The 20-Year Letter included an SBP Summary. c. On 20 August 2003, the National Guard Bureau disapproved his request to remain an additional 4 years in the AGR program. His separation date was established as 5 November 2003. d. On 27 August 2003, he submitted a request for retired pay at age 60. With his request, he completed two forms: (1) DD Form 2656 (Data for Payment of Retired Personnel). He indicated he was single and had a son (unknown date of birth). He elected not to participate in the SBP. He signed this form. No one else signed the form. (2) DD Form 2656-5 (Reserve Component SBP Election Certificate). He indicated that he was not married and did not have dependent children. He elected Option A which states “I decline to make an election until Age 60.” He signed this form. No one else signed the form. e. On 30 September 2003, the U.S. Army Reserve Command published orders placing him on the retired list in the grade of staff sergeant effective 5 November 2003. f. He was also honorably released from active duty on 5 November 2003 and was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) for his active duty AGR service. g. He was also discharged from the ARNG and transferred to the Retired Reserve on 6 November 2003. His NGB Form 22 (Report of Separation and Record of Service) shows he completed 23 years, 7 months, and 14 days of ARNG service for retired pay. h. On 7 November 2003, ILARNG published orders transferring him to the Retired Reserve effective 6 November 2003. i. On 17 November 2003, ILARNG published orders releasing him from AGR status effective 5 November 2003. 3. The applicant provides: a. Marriage Certificate that shows he and were married on 2 October 2020. b. DD Form 2656-6 (SBP Election Change Certificate), dated 29 April 2022.He indicated his current coverage is “No Coverage” and that he is requesting a change in coverage based on “Marriage.” He requested to change coverage to “spouse only” coverage based on the “full retired pay.” He and a witness signed the form on 29 April 2022 and their signatures were notarized. 4. There is no indication he submitted an SBP election to the Defense Finance and Accounting Service within 1 year of his marriage. BOARD DISCUSSION: 1. 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 law, policy and regulation. Upon review of the applicant’s petition and available military records, the Board determined there is insufficient evidence the applicant attempted to designate his current spouse as his beneficiary within one year of their marriage date. The Board noted the applicant submitted his request two years after his marriage. The Board found the applicant has not exhausted all his administrative remedies. Whereas currently open season is underway, and the applicant has until 31 December 2023 to elect spouse coverage. Based on the preponderance of evidence, the Board determined relief is not warranted. 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. Public Law 92-425, enacted 21 September 1972, 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 very specific circumstances. The election must be made before the effective date of retirement. Since its creation, it has been subjected to several substantial legislative changes. 2. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component (RC) members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60. Three options were available: * Option A – elect to decline enrollment and choose at age 60 whether to start SBP participation * Option B – elect that a beneficiary receives an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday * Option C – elect that a beneficiary receives an annuity immediately upon their death if before age 60 3. Once a member elects either option B or option 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 options automatically roll into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. Option A, on the other hand, gives an eligible member the option to make an election at age 60. Because there are no benefits payable in the event of death prior to age 60, a person who opts in at that point pays no RCSBP premium cost, but only the basic SBP premium going forward. 4. Public Law 106-398, enacted 30 October 2000, required written spousal consent for a Reserve service member to be able to delay making an RCSBP election until age 60. The law is applicable to cases where 20-year letters have been issued after 1 January 2001. In other words, failure to elect an option now results in the default election of option C. The declination, with the spouse's consent, must be made before the end of the 90-day period beginning on the date on which the member receives his/her 20-year letter. 5. Title 10, U.S. Code, section 1448(a)(5) (Participation by Person Marrying after Retirement, etc.), provides that a person who is not married and who has no dependent child upon becoming eligible to participate in the Plan, but who later marries or acquires a dependent child, may elect to participate in the Plan. 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. 6. The SBP Open Season allows for retirees receiving retired pay, eligible members, or former members awaiting retired pay who were NOT enrolled in SBP or RCSBP (Reserve Component Survivor Benefit Plan) as of December 22, 2022, 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 circumstances). The SBP Open Season also allows eligible members and former members who were enrolled in SBP or RCSBP (Reserve Component Survivor Benefit Plan) as of December 22, 2022, 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. The SBP Open Season runs from December 23, 2022, to January 1, 2024. There are special forms to enroll or discontinue in accordance with the NDAA 2023 SBP Open Season law and processes. The forms, information, and FAQs are available on our special focus webpage: https://www.dfas.mil/sbpopenseason23. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010639 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1