IN THE CASE OF: BOARD DATE: 14 February 2023 DOCKET NUMBER: AR20220004992 APPLICANT REQUESTS: correction of his records to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage to "Spouse Only" within 1 year of his marriage. 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) * Self-authored Letter, 8 July 2021 * U.S. Uniformed Services Identification Card * Driver's License * two Marriage Certificates, * Circuit Court Final Divorce Decree, 2 July 1994 * Defense Finance and Accounting Service (DFAS) U.S. Military Retired Pay Office Letter, 13 May 2021 * Email Correspondence to 99th Regional Readiness Command Representative, 16-29 June 2021 * Standard Form 180 (Request Pertaining to Military Records), 8 July 2021 * DD Form 2656-6 (Survivor Benefit Plan (SBP) Election Change Certificate), 23 March 2022 FACTS: 1. The applicant states he did not make an RCSBP election upon receipt of his 20-year letter. It was his understanding that by not making an election, "Option C (Child(ren) Only)" would be selected and that he could change that election upon his retirement if needed. a. He was single/divorced when he received his 20-year letter and was not aware that Option C would be selected or that he only had 1 year to notify DFAS or the U.S. Army Human Resources Command (HRC) to change that election if he remarried before retirement. b. After his remarriage, he went to his unit personnel office and updated all relevant forms to add his new spouse. He was not informed at that time that he needed to submit a DD Form 2656-6. c. With his retirement packet he submitted in 2020, he elected "Spouse Only" coverage as his children were no longer eligible for coverage due to their ages. Upon receiving his summary of retired pay from DFAS, he noticed the SBP election was for "Child(ren) Only." He then contacted DFAS and was given instructions to complete and submit a DD Form 2656-6. After several weeks, he received a notice that his election change was denied. 2. The applicant's records do not contain, and he did not provide a copy of his divorce decree from his previous marriage that may address "former spouse" SPB coverage. The Defense Retiree and Annuitant Pay System also does not contain a copy of the applicant's divorce decree from his previous marriage. 3. The HRC memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 26 June 2008, notified him that he completed the required years of qualifying service and he was eligible for retired pay upon application at age 60. (Note: Only page 1 is filed in his service records.) The memorandum informed him that: Public Law 106-398, 30 Oct[ober] 2000, requires that upon receipt of this Letter, a qualified Reserve Component member, who is married, will automatically be enrolled in the RCSBP under Option C, Spouse and Child(ren) coverage based on Full Retired Pay, UNLESS spouse concurrence is provided to allow one of the following elections: a. Option A (defer enrollment until age 60 when you apply for retired pay). b. Option B (enroll and pay an annuity when YOU would have been age 60). (1) Enroll spouse or spouse and child(ren) at LESS THAN the maximum level. (2) Enroll child(ren) only. c. Option C (enroll and pay an annuity immediately upon your death) but: (1) Enroll spouse or spouse and child(ren) at LESS THAN the maximum level. (2) Enroll children only. 4. On 12 April 2018, he married. The marriage certificate shows they both were married previously. 5. The Defense Retiree and Annuitant Pay System shows he completed a DD Form 2656-6 on 6 January 2021 wherein he indicated his current SBP coverage was for "Child Only." He requested to change his SBP coverage to "Spouse Only" based on full retired pay as a result of marriage. His spouse is listed The form is properly signed, dated, and witnessed. 6. The Defense Retiree and Annuitant Pay System shows he submitted a letter to DFAS, 10 January 2021, wherein he stated he did not make an SBP election upon receipt of his 20-year letter in 2008. He previously submitted a retirement application packet that would have been effective in August 2014, but he rescinded those retirement orders. He was not married at that time and would have elected "Child(ren) Only" coverage. His children are no longer eligible for coverage. 7. On 13 May 2021, the DFAS Military Retired Pay Office notified him that DFAS could not process his SBP request because his original election received on 5 November 2020 was invalid because he did not notify DFAS within 1 year of his marriage. 8. On 23 March 2022, he completed a DD Form 2656-6 in connection with his application for retirement. He indicated his current SBP coverage was for "Child Only." As a result of remarriage, he requested to change his SBP coverage to "Spouse Only" based on full retired pay. His spouse is listed The form is properly signed, dated, and witnessed. (Note: His records do not contain his complete retirement application packet and he did not provide a copy for consideration.) 9. Headquarters, 99th Readiness Division (U.S. Army Reserve), Orders 20-226-00038, 13 August 2020, assigned him to the Retired Reserve effective 30 October 2020. 10. HRC Orders C11-090299, 3 November 2020, retired him and placed him on the Army of the United States Retired List effective 30 October 2020. BOARD DISCUSSION: The applicant is requesting a correction to his SBP record in that the current designation, “Child Only” be exchanged with “Spouse Only”. The applicant married on 12 April 2018. The marriage certificate shows they both were married previously. He submitted a request to DFAS, but DFAS could not process his request because his original election received on 5 November 2020 was invalid, as it was not received within one year of his marriage. The applicant acknowledged the one-year window from his second marriage elapsed and his children no longer meet the statutory age allowance to be SBP beneficiaries. He provided his current spouse’s divorce decree and that of her former spouse/husband. The spouse’s divorce decree from her former husband has no legal significance for purposes of a SBP analysis; it’s the applicant’s divorce decree that must be considered and evaluated. The applicant’s packet definitively did not contain the applicant’s divorce decree leaving it to speculation as to whether the former spouse had a court sanctioned right to the applicant’s military retirement benefits. As a result, without knowing what the applicant and former spouse negotiated divorce settlement contained, the Board is unable to grant relief. The Board did however note that with the inclusion of a Congressionally directed SBP open season in the 2023 NDAA, the relief the applicant is seeking may be granted without involving the Board. 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. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service), effective 1 August 1987, implemented statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers. Chapter 3 (RCSBP) provided policies and procedures for implementing Public Law 95-397, as amended. a. Paragraph 3-2c stated all eligible personnel have 90 days from the date of receipt of the DD Form 1883 to make their election and return the form to the appropriate office. b. Paragraph 3-3c (Policies Regarding Notification of RCSBP Options) stated the SBP forms and information become time sensitive when received by the Soldier. Those distributed by mail will request the return of an enclosed acknowledgement of receipt card to ensure control of the 90-day suspense period. 2. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who qualified for Non-Regular (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 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 until the date of the member's 60th birthday; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does not occur before age 60, the RCSBP costs for Options B and C are deducted from the member's retired pay (costs for option C being the more expensive). 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 RCSBP – it automatically converts to 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. 3. Department of Defense Instruction 1332.42 (Survivor Benefit Plan), paragraph 4.4d (Marriage After Retirement or Notification of Eligibility when There Was Not an Eligible Spouse or Former Spouse when Initially Electing SBP or Reserve Component SBP Coverage), states: a. A covered participant who did not have a spouse or former spouse when he or she was initially eligible to make an election to participate in the SBP or RCSBP, who later marries, may elect to cover the new spouse within 1 year of marriage (note that coverage is not automatic). (1) If there is no existing SBP or RCSBP beneficiary, the member may elect to cover the new spouse effective as of the date of the first anniversary of the marriage, with costs accruing as of the first anniversary of the marriage. (2) If the previous election was for child SBP or RCSBP coverage, the member may elect to add spouse coverage, resulting in spouse and child coverage, with a recalculation of the premium effective as of the date of the first anniversary of the marriage. (3) If the previous election was for an insurable interest beneficiary, the coverage for the insurable interest beneficiary must be terminated in order to cover the new spouse, effective as of the date of the first anniversary of the marriage. b. The election may be made by submitting a signed, written election on the DD Form 2656-6 that is received by the Secretary concerned within the 1-year period immediately after marrying the spouse. 4. Periodically Congress authorizes an open enrollment season to allow retirees certain changes to their SBP participation or non-participation. The National Defense Authorization Act for Fiscal Year 2023 authorized an open enrollment season from 23 December 2022 through 1 January 2024. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004992 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1