IN THE CASE OF: BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220005123 APPLICANT REQUESTS: a. reinstatement of his Survivor Benefit Plan (SBP) coverage and establishment of his current spouse as the beneficiary of the annuity, and b. a personal appearance hearing before the Board. 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) * Email from Congressional Representative, 9 June 2022, with Privacy Authorization Release Form * Self-authored Memorandum (Administrative Correction of SBP Election, (Applicant)), 24 May 2022 * Enclosure 1 – Defense Finance and Accounting Service (DFAS) Letter, 10 September 2021, with attachment * Enclosure 2 – DD Form 2656-6 (SBP Election Change Certificate), 15 November 2021 * Enclosure 3 – * DFAS Memorandum (Request to Resume SBP Coverage), 3 January 2022 * DD Form 2656-6, 4 January 2022 * Enclosure 4 – DFAS Letter, 2 February 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 December 2002 FACTS: 1. The applicant states he was disenrolled from the SBP when he tried to resume coverage for his current spouse. a. He began this process in January 2021 when DFAS told him he did not have a valid SBP election on file. He submitted a new DD Form 2656-6 and checked the wrong box in Section III (I am requesting a change in coverage based on) block 8, which indicated he wanted to stop SBP coverage instead of resume SBP coverage. b. DFAS denied his written attempt to correct his records with a new DD Form 2656-6. DFAS instructed him that Army Retirement Services could change the records; however, the Army Retirement Services at Fort Bragg, NC, told him that only the Army Review Boards Agency (ARBA) could correct his records and re-enroll his spouse in the SBP. 2. In his 24 May 2022 memorandum to the Board, he requests reinstatement of his SBP coverage at full retired pay for his new spouse, effective 4 January 2022. He noted he would be responsible for any catch-up payments to the SBP beginning January 2022. He also noted: a. He remarried in December 2020. Upon this marriage, as he entered his current spouse in the Defense Enrollment Eligibility Reporting System (DEERS), he was informed that his SPB monthly payments would begin the month following their first anniversary in January 2022. b. DFAS conducted an audit of his retired military pay and determined that he owed $44,593.64 in back payments for the SBP (enclosure 1). c. He paid the debt in October 2021 and was informed by DFAS in a phone call on 22 October 2021 that he should also have been directed to complete a DD Form 2656-6 for his new spouse. d. He completed, signed, dated, and mailed the DD Form 2656-6 (enclosure 2) to DFAS on 15 November (enclosure 2). On that form, he erroneously checked block 8(3) in Section Ill, indicating he did not want to resume SBP spouse coverage, which was not his intent. He also completed Section IV (Requested Change to Coverage) and Section V (Level of Coverage) of the DD Form 2656-6, indicating his intent to provide spouse-only coverage at full retired pay. e. He discovered his mistake in December 2021 and submitted a new and accurate DD Form 2656-6 on 4 January 2022 (enclosure 3). f. DFAS informed him by letter on 2 February 2022 that his DD Form 2656-6, 4 January 2022, could not be accepted because his "erroneous" election on 15 November 2021 was his election of record. DFAS also instructed him to contact his local Retirement Services Office if he wanted to appeal the decision (enclosure 4). g. He contacted the Fort Bragg Retirement Services Office and was informed that only ARBA could approve correction of an SBP election. At the direction of the Fort Bragg Retirement Services Office, he mailed a request to correct his military records to ARBA in March 2022. h. His actions throughout 2021 reinforce his intent to provide SBP coverage for his wife. He admits that he made a singular mistake and checked the wrong box on the DD Form 2656-6 in November 2021. If his intent was not to resume SBP coverage for his spouse, he questions why he would have paid the debt to make him fully vested in the program and followed up with DFAS on the issue. 3. He retired on 31 December 2002 in the rank of colonel. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 26 years, 6 months, and 29 days of net active service during this period. 4. His Official Military Personnel File does not contain any retirement or SBP documentation showing his initial SBP election coverage. 5. He provided: a. a DFAS letter, 10 September 2021, with audit enclosure worksheet, that addressed his military retired pay account. The letter noted DFAS performed an audit of his account and determined he had been overpaid because of an adjustment made to the SBP portion of his retired pay account based on the documentation DFAS received from him. His account was in arrears in the amount of $44,593.64 since on or about 1 August 2016; b. his DD Form 2656-6, 15 November 2021, that shows in: (1) Section I (Member Information), block 3 (Date of Retirement), his retirement as 1 January 2003; (2) Section II (Current Coverage), block 7 (My Current Coverage is), he checked "Suspended Coverage"; (3) Section III (Conditions That Trigger Eligibility to Change Coverage), block 8 (I Am Requesting a Change in Coverage Based on), he placed an "X" by "Remarriage. A member, whose spouse coverage is suspended due to death of the spouse or divorce, has three options upon remarriage (choose one option by placing an X in the appropriate block), he placed an "X" by the statement "Option 3 – Not Resume Any SBP Coverage for My New Spouse"; (4) Section IV (Requested Change to Coverage), block 9 (Place an X in the Appropriate Box to Indicate Your Election), he checked "Resume Existing Coverage"; (5) Section VI (Spouse and Child(ren) Information), block 11 (Spouse's Name), he listed and in block 12 (Date of Marriage), he entered 12 December 2020; (6) Section VI, block 13 (Dependent Children), he did not list any children; and (7) Section VII (Member Signature), he signed the form on 15 November 2021 and his signature was witnessed and notarized the same date in c. his 3 January 2022 letter to DFAS that included a DD Form 2656-6, 4 January 2022, requesting to resume his SBP coverage for his current spouse. He stated he remarried in December 2020. He further stated: Upon this remarriage, DFAS informed me that my original DD Form 2656-6 was not completed correctly when I retired in 2003. As such, my file was audited, and I paid over $43,000 in back SBP Costs in September 2021. DFAS told me to submit a new DD Form 2656-6 with an election to resume a full retired pay level of coverage and I would begin SBP Cost deductions from my retired pay beginning January 2022, the month following the anniversary of my remarriage. I erroneously sent a DD Form 2656-6 with the wrong block checked in Section Ill. It is my intent to resume SBP Coverage for my current spouse at Full Retired Pay Level of Coverage. I request you remove the DD Form 2656-6, dated 20211115 [15 November 2021] from my file. I request you update my file with the enclosed DD Form 2656-6 and make my official SBP Election as Full Coverage for my spouse I request you audit my file for any SBP Costs I should have incurred beginning January 2022 and begin deducting SBP Costs from my retired pay. d. his DD Form 2656-6, 4 January 2022, that shows in: (1) Section I (Member Information), block 3 (Date of Retirement), his retirement as 1 January 2003; (2) Section II (Current Coverage), block 7 (My Current Coverage is), he checked "Suspended Coverage";? (3) Section III (Conditions That Trigger Eligibility to Change Coverage), block 8 (I Am Requesting a Change in Coverage Based on), he placed an "X" by "Remarriage. A member, whose spouse coverage is suspended due to death of the spouse or divorce, has three options upon remarriage (choose one option by placing an X in the appropriate block), he placed an "X" by the statement "Option 1 – Resume Existing Level of Coverage for My New Spouse"; (4) Section IV (Requested Change to Coverage), block 9 (Place an X in the Appropriate Box to Indicate Your Election), he checked "Spouse Only"; (5) Section V (Level of Coverage), he placed an "X" by "Full Retired Pay"; (6) Section VI (Spouse and Child(ren) Information), block 11 (Spouse's Name), he listed and in block 12 (Date of Marriage), he entered 12 December 2020; (7) Section VI, block 13 (Dependent Children), he did not list any children; and (8) Section VII (Member Signature), he signed the form on 4 January 2022 and his signature was witnessed and notarized the same date in and e. the DFAS letter, 2 February 2022, informing him that his SBP request could not be processed because his original election received on 11 January 2022 was invalid. DFAS noted his request was invalid because his initial request was to terminate spousal coverage upon remarriage. He may contest his original SBP election with his branch of service Retirement Services Office. 8. On 23 February 2023, a DFAS pay technician noted the DFAS database shows the applicant's SBP status as declined spouse excluded as of 23 November 2021. At retirement the applicant had "Spouse and Child Coverage," and his spouse at that time died on 25 March 2003, which converted his coverage to "Child Only." He remarried on 2 July 2005 and unfortunately that spouse died on 28 July 2015. He then requested to decline coverage for his new spouse whom he married on 12 December 2020. He then tried to reinstate her on his SBP, saying he checked the wrong box on the DD Form 2656-6, but that request was not approved. DFAS records show: a. the 7 April 2003 letter from the applicant to DFAS requesting disenrollment of the SBP for his wife, due to her death. He further requested that his two children remain enrolled in the SBP and provided a death certificate showing his spouse, died on 25 March 2003; b. the applicant's marriage license and certificate showing he and married on 2 July 2005;? c. the death certificate showing the applicant's wife died on 28 July 2015; d. the applicant's marriage license and certificate showing he and married on 12 December 2020; e. the applicant's DD Form 2656-6, 29 December 2020, showing in: (1) Section II (Current Coverage), block 7 (My Current Coverage is), he checked "No Coverage"; (2) Section III (Conditions That Trigger Eligibility to Change Coverage), block 8 (I am Requesting a Change in Coverage Based on), he placed an "X" by "Marriage"; (3) Section IV (Requested Change to Coverage), block 9 (Place an X in the Appropriate Box to Indicate Your Election), he checked "Spouse Only"; (4) Section V (Level of Coverage), he checked "Full Retired Pay"; (5) Section VI (Spouse and Child(ren) Information), block 11 (Spouse's Name), he listed and in block 12 (Date of Marriage), he entered 12 December 2020; (6) Section VI, block 13 (Dependent Children), he did not list any children; and (7) Section VII (Member Signature), he signed the form on 29 December 2020 and his signature was witnessed and notarized the same date in f. the DFAS letter, 8 July 2021, informing him that DFAS was unable to process his SBP request due to the missing marriage certificate for g. the applicant's DD Form 2656-6, 15 November 2021, described above; h. the applicant's letter to DFAS, 3 January 2022, described above; and i. the applicant's DD Form 2656-6, 4 January 2022, described above. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found relief is warranted. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board found the evidence clearly shows the applicant made a mistake on a form he submitted to DFAS in November 2021 that led to suspension of SBP for his current spouse. The Board determined the applicant’s record should be corrected by removing the erroneous form, which will result in automatic resumption of his original SBP election on the 1-year anniversary of his current 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 the evidence presented is 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 removing the DD Form 2656-6, 15 November 2021, which will allow automatic resumption of his original SBP election on the 1-year anniversary of his current marriage. 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. a. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR members will direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists in the record. b. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. 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 certain circumstances. Elections are made by category, not by name. The election must be made before the effective date of retirement or coverage defaults to automatic spouse coverage. Since its creation, it has been subjected to a number of substantial legislative changes. 3. 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 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. 4. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from the SBP. The spouse's concurrence is required. No premiums will be refunded to those who opt for disenrollment. The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned. 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. Department of Defense Instruction 1332.42 (Survivor Annuity Program Administration) states a member may elect to discontinue participation by submitting DD Form 2656-2 during the period that is more than 2 years but less than 3 years after the first date of entitlement to receive retired pay. The member must submit the request no earlier than the 1st day of the 25th month, and no later than the last day of the 36th month from the date of entitlement to retired pay, with spousal concurrence if applicable. A member electing to terminate coverage is not eligible for continuation in the Program; however, the member has 30 days after submitting a request to discontinue participation to revoke the request. 7. 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 requires 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. 8. DEERS is a computerized database of military sponsors and eligible family members who are entitled to benefits under the law, such as medical care, post exchange ? privileges, and commissary privileges, among other benefits. Informing sponsors about SBP updates is not the responsibility of DEERS registration duties. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005123 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1