IN THE CASE OF: BOARD DATE: 14 October 2022 DOCKET NUMBER: AR20220004658 APPLICANT REQUESTS: correction of his records to change his Survivor Benefit Plan (SBP) coverage from "Child Only" to "Spouse Only." 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), with self-authored letter, 30 December 2021 * Spouse's Birth Certificate, * DD Form 214 (Certificate of Release or Discharge from Active Duty), 6 June 1991 * State Military Department Memorandum (Notification of Eligibility for Retired Pay at Age 60), 6 June 2000 * Marriage Certificate, 30 November 2001 * National Guard Bureau Form 22 (Report of Separation and Record of Service), 22 August 2006 * Joint Force Headquarters, Alabama National Guard, Orders 214-593, 29 August 2006 * Department of Veterans Affairs (VA) Letter, 23 February 2009 * Defense Finance and Accounting Service (DFAS) Retiree Account Statement, 2 November 2021 * DD Form 2656-6 (SBP Election Change Certificate), 8 November 2021 * DFAS Letters, 21 December 2021 and 2 February 2022 FACTS: 1. The applicant states he was ordered to active duty as a member of Detachment 1, 214th Military Police Company (Combat Support), Alabama Army National Guard, following the terrorist attack on the Twin Towers. He was unmarried with two dependent children at that time. His children's names are listed in his SBP. He has since married and did not know about the 1-year requirement to add his new spouse to his SBP. His two children are now grown, are beyond 22 years of age, and are ineligible for SBP coverage. He would like to add his current spouse to his SBP coverage. 2. He was serving in the Army National Guard at the time he received his Notification of Eligibility for Retired Pay at Age 60 (commonly known as a 20-year letter), 6 June 2000. 4. His DD Form 1883 (SBP Election Certificate), 8 July 2000, shows in: a. Section II (Marital, Dependency, and Election Status): * he marked "No" indicating he was not married * he marked "Yes" indicating he had dependent children * he elected "Child Only" for his type of coverage based on the full amount of his retired pay and Option C (Immediate Coverage) b. Section III (Family Information): no entry for spouse; daughter, with a birth date in; and son, with a birthdate in 5. His Reserve Component Supplemental SBP Election Certificate, 8 July 2000, shows he declined coverage under the Reserve Component Supplemental SBP. 6. His marriage certificate shows his marriage to on 17 November 2001. His marriage license is not in evidence for review. 7. He was honorably discharged from the Army National Guard on 22 August 2006 and transferred to the Retired Reserve. His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he completed 26 years of total service for retired pay. 8. Joint Force Headquarters, Alabama National Guard, Orders 241-593, 29 August 2006, discharged him from the Army National Guard and assigned him to the Retired Reserve effective 22 August 2006. 9. The VA letter, 23 February 2009, informed him of the VA determination regarding his entitlement to disability compensation for post-traumatic stress disorder. 10. U.S. Army Human Resources Command Orders C04-192451, 13 April 2021, retired him and placed him on the Retired List effective 15 October 2021. 11. His DFAS Retiree Account Statement, 2 November 2021, shows his SBP coverage as "Child(ren) Only" with his child's birthdate in. 12. On 8 November 2021, he completed a DD Form 2656-6 (SBP Election Change Certificate) to change his SBP coverage from "Child Only" to "Spouse Only" due to marriage. In block 8 (I Am Requesting a Change in Coverage Based on) he marked "Marriage." The notes state: "A member, who does not have a spouse at the time of initial eligibility, may provide SBP for the first spouse acquired after retirement by electing coverage before the first anniversary of that marriage. Coverage and cost begin on the first anniversary of the marriage (coverage begins immediately upon the birth of a child to the member and spouse beneficiary)." 13. The DFAS letter, 21 December 2021, responded to the applicant's request to add his spouse to his SBP received on 20 November 2021, stating. a. DFAS is unable to process his request to add his spouse to his SBP. To add a spouse, participants must submit an election prior to the 1-year anniversary of the date of marriage. b. Occasionally, Congress approves an open enrollment period that would allow him to add his spouse to his SBP. If this opportunity becomes available, he will be advised. c. This is DFAS's final determination regarding his request. He has the right to submit an appeal of this determination to the Defense Office of Hearings and Appeals. His appeal must be received by Defense Office of Hearings and Appeals no later than 30 days after the date of this letter. 14. The DFAS letter, 2 February 2022, responded to the applicant's request to add his spouse to his SBP received on 7 January 2022, stating: a. DFAS is unable to process his request to add his spouse to his SBP. To add a spouse, participants must submit an election prior to the 1-year anniversary of the date of marriage. b. Around 6 June 2000, he should have received a 20-year letter from the Army. His branch of service received his Reserve Component Survivor Benefit Plan (RCSBP) election within 90 days of the receipt of that letter. c. His eligible beneficiaries at the time of the 90 days from the date of that letter were his daughter and son. Since the branch of service did not receive any notification within 1-year of the date of his marriage, his spouse cannot be a beneficiary for the SBP. Furthermore, since he enrolled under the RCSBP, his DD Form 2656 election at retirement cannot be used for SBP purposes and the election for his spouse cannot be honored. If he would like to challenge this ruling, he may contact the board of corrections of his branch of service. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. The evidence of record shows upon receipt of the 20-year letter in 2000, the applicant, who was unmarried at the time, elected child only RCSBP coverage. The applicant did not add his later acquired spouse to the RCSBP coverage within one year of the marriage. The applicant states he was unaware of this requirement. Shortly thereafter, the applicant filed an ABCMR application. There is no error in this case. Nevertheless, the Board determined that had the applicant been aware of the statutory requirement to add his spouse within one year of their marriage, it is likely he would have on so. As a matter of fairness and equity, the record should be corrected to reflect the applicant elected to add spouse RCSBP coverage within one year of the marriage. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant properly elected to add “spouse” coverage to his SBP within 1 year of his marriage on 17 November 2001and his election was received and processed in a timely manner by the appropriate DFAS office. 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, RCSBP, 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 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. RCSBP coverage automatically converts to SBP coverage upon retirement. 3. 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 given in Army Echoes. 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. 5. Department of Defense Instruction 1332.42, enclosure 3, paragraph 7, provides that a member who does not have a spouse or dependent child when the member becomes eligible to participate and who later marries or acquires a dependent child may elect to participate in the Plan by submitting a signed, written election that is received by the Secretary concerned within the 1-year period after acquiring the first spouse or dependent child. An election under this paragraph is irrevocable unless otherwise provided by law. 6. Periodically, Congress authorizes an open enrollment season to allow retirees certain changes to their SBP participation or non-participation. The last open enrollment season was authorized by the National Defense Authorization Act for Fiscal Year 2005, thereby establishing an open enrollment season from 1 October 2005 through 30 September 2006. It is unknown when Congress will authorize a future open enrollment season. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004658 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1