IN THE CASE OF: 
 
  BOARD DATE: 19 September 2023 
 
  DOCKET NUMBER: AR20230000015 
 
 
APPLICANT REQUESTS: 
 
• correction of his Survivor Benefit Plan (SBP) to add his current spouse as the beneficiary 

• a personal appearance hearing before the Board via video/teleconference 


 
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) 

• County District Court Decree of Dissolution of Marriage, 1 September 2015 

• two State Certificates of Marriage, 18 September 2021 


 
FACTS: 
 
1.  The applicant states he wishes to add his current wife as his SBP beneficiary. 
 
 a.  In 2016, he retired from the Army and was told he and his ex-wife (K____ A. B____) needed to sign the form so she would not be eligible to receive any of his retirement benefits, even though they had already been legally divorced for a year. When signing the form to deny his ex-wife his retirement benefits, he was never told that he would be unable to enroll a future spouse. In 2021, he married his current wife (A____ C____ T____), which would be considered a life-changing event and they are expecting a child in December. 
 
 b.  He believes the judgment to deny his current wife as the beneficiary of his SBP should be declared null and void because he and his ex-wife divorced in 2015. His retirement from the Army took place 15 months after the divorce was finalized. Had he been informed that by signing this refusal of benefits for his ex-wife would not allow any future spouse to receive the SBP annuity, he would not have signed the form. 
 
2.  He enlisted in the Regular Army on 12 November 1991. 
 
3.  The County District Court Decree of Dissolution of Marriage shows he and K____ A____ B____ were granted a divorce on 1 September 2015. The document does not contain language regarding entitlement to an SBP annuity or military retired pay. 
 
4.  He retired on 30 November 2016 in the rank/grade of sergeant first class/E-7. 
 
5.  His Official Military Personnel File does not contain retirement or SBP documentation and he did not provide SBP documentation. 
 
6.  He provided his marriage certificate showing he and A____ C____ T____ married on 18 September 2021. 
 
7.  On 31 August 2023, a Defense Finance and Account Service (DFAS) pay technician noted the DFAS database shows the applicant's SBP status as "declined since retirement, spouse excluded." The DFAS database contains: 
 
 a.  the applicant's DD Form 2656 (Data for Payment of Retired Personnel), 25 October 2016, showing in: 
 
  (1)  Section VI (Federal Income Tax Withholding Information), block 14 (Marital Status), he placed an "X" in the "Single" box; 
 
  (2)  Section VIII (Dependency Information), block 22 (Spouse), he listed K____ A. B____ as his spouse with a marriage date of 5 September 2011 (they were divorced at this time); he did not list any children in block 25 (Dependent Children); 
 
  (3)  Section IX (SBP Election), block 26 (Beneficiary Category(ies)), he placed an "X" by the statement: "I elect not to participate in SBP"; and placed an "X" by the statement indicating "I do have eligible dependents under the plan"; 
 
  (4)  Section XI (Certification), he signed the form on 25 October 2016 and his signature was witnessed on the same date by an SBP Counselor at Fort Carson, CO; and 
 
  (5)  Section XII (SBP Spouse Concurrence. Required when member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage. The date of the spouse's signature in item 32b MUST NOT be before the date of the member's signature in item 30b above. The spouse's signature MUST be notarized.) is blank; and 
 
 b.  the Spouse SBP Election Concurrence Statement showing his former spouse, K____ A. B____, claiming to be his spouse, received information explaining the SBP election and the effects of the SBP election. She initialed the statement: "I concur with 
my spouse's SBP election, Decline SBP coverage." She signed the document on 15 November 2016 and her signature was notarized on the same date. 
 
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 shows the applicant was divorced when he retired in 2016. Despite this, he listed his former spouse as his current spouse and declined SBP with her concurrence. He remarried in 2021 and attempted to opt into SBP within one year with his new spouse as beneficiary and was denied due to the declination at retirement. The Board found an injustice occurred when applicant was denied SBP in 2022. He was assisted by an Army SBP counselor when he completed and signed the form in 2016. He states he was informed he needed to decline SBP to prevent his former spouse from getting his retirement benefits. If he relied on incorrect advice in executing this form and permanently opting out of SBP, this could be an error or injustice. The Board determined a correction is appropriate to show he did not have a spouse in 2016. This would allow him, by law, to elect to participate in SBP once he married in 2021. Based on his account, he submitted an election within one year of the marriage to opt into SBP. The record could be corrected to show it was received in a timely manner. 
 
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
xx: xx: xx: 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 did not have a spouse or children when he retired on 30 November 2016 

• Showing the applicant made a timely SBP Election for spouse coverage within 1 year of his marriage on 25 September 2021 

• Showing the appropriate office timely received, accepted, and processed his spouse SBP election within one year of his marriage 


 
  9/19/2023

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 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.  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, the SBP has been subjected to a number of substantial legislative changes. 
 
3.  Title 10, U.S. Code, section 1448, required notice to a spouse if a member elected not to participate in the SBP. The statute also provided for automatic enrollment for 
spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay. 
 
4.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount. 
 
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.  The DFAS SBP website states that 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. 
 
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. 
 
//NOTHING FOLLOWS//