IN THE CASE OF: BOARD DATE: 21 Marc 2023 DOCKET NUMBER: AR20220005718 APPLICANT REQUESTS: correction of his records by removing his spouse as the beneficiary of his Survivor Benefit Plan (SBP) annuity and adding his daughter as the beneficiary, thereby changing his SBP election coverage from "Spouse Only" to "Child(ren) Only." 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) * Certified Copy of Marriage Record, 18 September 2018 * Headquarters, Third Infantry Division and Fort Stewart, Fort Stewart, GA, Orders 313-0017, 9 November 2021 * DD Form 2656 (Data for Payment of Retired Personnel), 9 November 2021, with auxiliary documents * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 January 2022 * Certificate of Birth, issued * DD Form 2656-2 (SBP Termination Request), 11 April 2022 FACTS: 1. The applicant states: a. He was told by an Army SBP counselor at Fort Stewart, GA, that he would be able to remove his wife from coverage upon the birth of their daughter. His daughter was born . He only elected current spouse coverage based on the advice given by the counselor. b. After moving to Fort Hood, TX, the Fort Hood SBP counselor stated he would not be able to remove his spouse from his SBP until between the 25th and the 36th month of enrollment. He was stunned at the news that the Fort Stewart SBP counselor provided erroneous information. It is not his fault that he chose to enroll his spouse, thinking he would be able to remove her upon his daughter's birth. He sent a letter to the Defense Finance and Accounting Service (DFAS) explaining the issue but was told to contact this Board for possible resolution. Therefore, he requests an exception to policy to remove his spouse from SBP coverage and add his daughter for "Child Only" coverage. 2. The applicant enlisted in the Regular Army on 27 November 2018. 3. His marriage record shows he and his spouse, were married on 8 September 2018. 4. Headquarters, 3rd Infantry Division, Fort Stewart, Orders 313-0017, 9 November 2021, released him from assignment and duty because of physical disability and placed him on the on the Permanent Disability Retired List effective 28 January 2022. His retired rank/grade is shown as specialist/E-4 and his percentage of disability as 80%. 5. His DD Form 2656, 9 November 2021, shows in: a. Section VI (Federal Income Tax Withholding Information), block 17 (Marital Status), he placed an "X" in the "Married" box; b. Section IX (Dependency Information), block 29 (Spouse), he listed with a marriage date of 8 September 2018; and in block 32 (Dependent Children), he annotated "N/A [not applicable]"; c. Section X (SBP Election), block 34 (SBP Beneficiary Categories), he elected coverage for "Spouse Only" and placed an "X" in the "No" box by the "I have dependent children" box; d. Section X, block 35 (SBP Level of Coverage), he elected coverage based on full gross pay; e. Section XI (Certification), he signed the form on 9 November 2021 and his signature was witnessed on the same date by an Army SBP Counselor at Fort Stewart, GA. 6. He retired in the rank/grade of specialist/E-4 on 27 January 2022 by reason of combat-related disability. His DD Form 214 shows he completed 3 years, 2 months, and 1 day of net active service. 7. The birth certificate, issued 7 February 2022, shows his daughter, was born on 8. His DD Form 2656-2, 11 April 2022, shows he voluntarily elected to discontinue participation in the SBP with his spouse's concurrence. He and his spouse acknowledged they understood that once he discontinued the SBP, he could not reenter the Plan. He and his spouse signed the form in front of a Retirement Services Officer at Fort Hood, TX, on 11 April 2022. 9. The email correspondence from a DFAS pay technician (Army Review Boards Agency Assistance), 3 February 2021, noted the applicant currently has "Spouse and Child(ren)" coverage. The DFAS database contains: a. the applicant's marriage record, 8 September 2018; b. the applicant's DD Form 2656, 9 November 2021, showing his SBP election as "Spouse Only" coverage; c. an Army Retirement Services Office SBP Retiring Soldier Counseling Statement, 9 November 2021; d. the applicant's retirement orders, 9 November 2021; e. a birth certificate, issued 7 February 2022, showing the applicant's daughter, f. the applicant's 14 June 2022 letter to DFAS regarding his previous letter of April 2022, wherein he requested removing his wife from his SBP and adding his daughter. He stated he submitted the wrong form in April 2022 (DD Form 2656-2) and was advised by a DFAS representative to submit a DD Form 2656-8 (SBP Automatic Coverage Fact Sheet); g. an undated letter to DFAS informing DFAS that he was provided erroneous information by an SBP counselor at Fort Stewart, GA, that he would be able to remove his wife from coverage upon the birth of his daughter. He requests an exception to policy to remove his wife from his SBP and add his daughter for "Child(ren) Only" coverage; and h. the applicant's DD Form 2656-8 showing he provided dependency information showing he married his spouse in 2018 and has one dependent child under the age of 22. He signed and dated this form in front of a witness on 14 June 2022. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The applicant seeks a records correction to reflect child only SBP coverage instead of his current spouse and child coverage. He was married at the time of the medical retirement (27 January 2022) and his child was born five days later on 1 February 2022. Had the child been born six days earlier – i.e., prior to his retirement, the applicant would have been able to (with the proper spousal concurrence) elect child only SBP coverage. He tried to change his coverage from spouse to child only coverage, but he unable to do so given the irrevocable nature of the spouse SBP election. Instead, the child coverage was added to his existing spouse SBP coverage. b. DoDI 1332.42, Survivor Benefit Plan, section 4, paragraph 4.4.e states that a member who does not have a dependent child when the member initially became eligible to participate in SBP, but later acquires a dependent child may elect to participate in SBP. The DoDI does not limit this ability to elect SBP coverage for a newly acquired child to those members with an eligible spouse at retirement who elected spouse SBP coverage. Further, DoD 7000.14-R, FMR, volume 7b, chapter 43, paragraph 4.1.5 states that a member with a dependent child, who was unmarried on the date of retirement, may elect spouse coverage upon subsequent marriage “regardless of whether coverage was elected for their dependent child” (emphasis added). This language seems to support the proposition that as long as the member is without the relevant beneficiary category at retirement, then they can add or elect coverage for a later acquired beneficiary category regardless of what, if any, election they made for another beneficiary category at retirement. However, this language is not mirrored in paragraph 4.1.6, which merely states that a member with an eligible spouse who did not have a dependent child on the date of retirement may elect coverage for a later acquired dependent child. Paragraph 6.1.2., which discusses actions a member may take for later acquired eligible beneficiaries, does not address the situation of a member who declines coverage for an eligible spouse, but later acquires a dependent child. Paragraph 6.1.1.3 instead provides that a member who had no eligible child and elected for spouse only coverage may, within one year of acquisition of a child, include the child coverage previously elected for the spouse. c. Given this ambiguity and the fact that the alternative – a difference in birthdate of less than a week being the determinative factor as to whether the applicant is able to elect child only SBP coverage, the Board determined a preponderance of evidence supports granting relief. ? 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 showing applicant declined spouse SBP coverage at retirement, with spouse concurrence, and then elected child only SBP coverage upon the birth of the child. 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. Elections are made by category, not by name. Since its creation, it has been subjected to a number of substantial legislative changes. 2. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provided less than maximum spouse coverage. 3. Title 10, U.S. Code, section 1447, defines "dependent child" as a person who is: (1) unmarried and (2) under 18 years of age, or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution, or is incapable of self-support because of a mental or physical incapacity existing before the person's 18th birthday or incurred on or after the 18th birthday but before the 22nd birthday while pursuing a full time course of study or training; and (3) the child of a person to whom the plan applies, including an adopted child, a step or foster child, or a recognized natural child who lived with that person in a regular parent-child relationship. 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. 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 to disenroll. 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. 6. Department of Defense Instruction 1332.42 (Survivor Annuity Program Administration) states a member may elect to discontinue participation by submitting a 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. Department of Defense 7000.14-R (Financial Management Regulation, volume 7b, chapter 43, paragraph 4.1.6, provides that a member with an eligible spouse who did not have a dependent child on date of retirement later may elect coverage for a dependent child. The election must be received by the Secretary concerned within 1 year of the date of acquiring their first dependent child. 8. Department of Defense 7000.14-R, volume 7b, chapter 43, paragraph 6.1.1.3, provides that if, on the date of retirement, the member has no eligible child and elected for spouse only, the member may, within 1 year of acquisition of a child, include the child with coverage previously elected for the spouse. 9. 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 season from 23 December 2022 through 1 January 2024. The 2023 National Defense Authorization Act SBP open season does not allow for changes to existing SBP coverage. A member may not discontinue coverage during the SBP open season for one category of beneficiary and then re-enroll in a different category. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005718 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1