IN THE CASE OF: BOARD DATE: 8 February 2023 DOCKET NUMBER: AR20220007194 APPLICANT REQUESTS: * correction of his records to change his Survivor Benefit Plan (SBP) coverage from "Child Only" to "Spouse Only" * a personal appearance hearing before the Board via video/telephone 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) * State Marriage Record, 12 June 2006 * DD Form 2656 (Data for Payment of Retired Personnel), 27 March 2020 * Defense Finance and Accounting Service (DFAS) Retiree Account Statement, 19 June 2020 FACTS: 1. The applicant states: a. He completed forms for SBP coverage for his spouse when he retired in 2020. On 23 March 2022, he was notified by DFAS that due to an error made by his U.S. Army Reserve (USAR) unit in 2006, his SBP coverage is for "Child Only." He notified his USAR unit of his change in marital status and submitted the paperwork shortly after his new marriage in June 2006, electing SBP coverage for his current spouse at "Full Gross Pay." b. In 2006, he was assigned to a newly established USAR unit that did not have administrative personnel or knowledgeable human resources personnel at that time. It wasn't until 2007, just before he left that unit, that unit administrative personnel were assigned. c. On 23 March 2022, he spoke to a DFAS representative who stated he would have to file an appeal with the Army Review Boards Agency for this correction. The representative also stated DFAS does not have his request to add his new spouse to his SBP and the information he submitted does not match that of the USAR in which he elected child coverage in April 2006. d. The referenced child is his step-daughter, the daughter of his current spouse. They were not married until June 2006 and he had no children from his first marriage from 1988 through 2000. His unit administrators gave him incorrect information and instructions, and his DD Form 2656 was not completed correctly. 2. The applicant's marriage certificate and divorce decree from his first marriage is not in evidence for review. 3. The U.S. Army Human Resources Command memorandum (Notification of Retired Pay at Age 60 (20-Year Letter)), 5 January 2006, notified him that he completed the required years of qualifying Reserve service and was eligible for retired pay upon application at age 60. 4. His records contain no evidence of a DD Form 2656-5 (Reserve Component (RC) SBP Election Certificate) at the time of receipt of his 20-year letter. 5. His State Marriage Certificate, 12 June 2006, shows his marriage to on that date. 6. Headquarters, 88th Regional Support Command, Orders 11-224-00004, 12 August 2011, reassigned him to the Retired Reserve effective 31 October 2011. 7. His DD Form 2656 (Data for Payment of Retired Personnel), 27 March 2020, shows in: * item 17 (Marital Status) – Married * item 30 (Date of Marriage) – 12 June 2006 * item 33 (Reserve Component Only) – * he marked Option C (Previously Elected or Defaulted to Immediate RCSBP Coverage) * he marked "NO" (Marital Status has Changed Since your Initial Election to Participate in RCSBP) * Part IV (Certification) – his signature and the signature of a witness, 27 March 2020 8. U.S. Army Human Resources Command Orders C06-095513, 18 June 2020, retired him and placed him the Retired List effective 20 December 2019. 9. His DFAS Retiree Account Statement, 19 June 2020, shows his SBP coverage as "Spouse Only." 10. The email from the Department of the Army Deputy Chief of Staff, G-1 (SBP Coverage), 16 December 2022, states that according to the Defense Retired and Annuitant Pay System, the applicant's original SBP election was for child only with immediate coverage at full retired pay effective 5 April 2006. His current election is "Child Only" for the annuitant (stepdaughter with a birthdate in). His SBP coverage was automatically generated on 8 June 2020, corrected to 20 December 2019, the date he was placed on the Retired List. BOARD DISCUSSION: 1. 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 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 public law, policy and regulation. Upon review of the applicant’s petition and available military records the Board agreed the applicant submitted a properly executed DD2656 wherein he elected “Spouse Only” coverage in anticipation of his non?regular retirement effective date. Furthermore, the Board determined based on the provided facts, it appears he acted in good faith with his assigned administrative element prior to retiring and but for some reason his SBP record only providing for children he never had nor was responsible for. Based on this, the Board granted relief to have his SBP election amended to reflect “Spouse Only”. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. ? 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 the applicant changed his Survivor Benefit Plan (SBP) coverage from "Child Only" to "Spouse Only" 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 Army Board for Correction of Military Records (ABCMR). The ABCMR considers individual applications that are properly brought before it. 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 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. 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. 3. 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. 4. 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. 5. Title 10, U.S. Code, section 1454 (Correction of Administrative Errors), states the Secretary concerned may, under regulations prescribed under section 1455 of this title, correct or revoke any election under this subchapter when the Secretary considers it necessary to correct an administrative error. 6. Title 10, U.S. Code, section 1552 (Correction of Military Records: Claims Incident Thereto), states the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 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 RCSBP 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 RCSBP 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007194 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1