IN THE CASE OF: BOARD DATE: 18 July 2023 DOCKET NUMBER: AR20230000061 APPLICANT REQUESTS: in effect, correction of his records to show he submitted a DD Form 2656-6 (Survivor Benefit Plan (SBP) Election Change Certificate) 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) * Marriage License, 7 September 2016 FACTS: 1. The applicant states he retired from the Missouri Army National Guard (ARNG) in 1993. He got married 6 years ago and did not know he needed to complete the SBP election change within 1 year of his marriage. He requests to change his SBP to "Spouse Only." 2. He was inducted into the Army of the United States on 18 May 1953. 3. He was honorably released from active duty on 30 April 1955 and transferred to the U.S. Army Reserve to complete his service obligation. He completed 1 year, 11 months, and 13 days of active service during this period. Item 45 (Marital Status) of his DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he was married. 4. His of DA Form 2-1 (Personnel Qualification Record Part II), last reviewed on 10 April 1980, shows in: * Section IV (Personal and Family Data) his spouse was born in Oklahoma * item 24 (Number of Dependents) one adult and three children * item 35 (Record of Assignments) * 18 May 1953 to 30 April 1955 Active Duty * 1 May 1955 to 17 May 1961 U.S. Army Reserve not on Active Duty * 1 September 1975 to 31 December 1976 Army National Guard not on Active Duty 5. The Oklahoma Army National Guard Memorandum (Request for Waiver (Applicant)), 13 April 1983, requested approval of a waiver to permit the applicant's retention until 17 September 1993. The additional 11 years and 17 days of satisfactory service were required for him to qualify for retirement. The request, if approved, would allow him to complete 20 years of satisfactory service at age 60 years, 5 months, and 11 days. 6. His DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), 9 July 1985, shows he enlisted in the Air National Guard on this date for a period of 6 years. Item 7 (Previous Military Service upon Enlistment/Reenlistment) shows in: * item 7a (Total Active Military Service) 1 year, 11 months, and 13 days * item 7b (Total Inactive Military Service) 15 years, 10 months, and 25 days 7. His National Guard Bureau memorandum for the Oklahoma Adjutant General (Ineligibility for Retirement at Age 60), 14 June 1990, states the Personnel Management Branch computed the applicant will qualify for retirement on 17 September 1993. 8. He enlisted in the Army National Guard of the United States on 7 October 1991 for a period of 3 years. 9. His DD Form 398-2 (National Agency Questionnaire), 7 October 1991, shows in: * item 10 (Residence) Oklahoma City, OK, from October 1971 through October 1991 and Kansas City, KS, from October 1991 to present * item 12 (Family/Associates) his spouse, R____ I____, residing in Oklahoma City, OK 10. His DD Form 1172 (Application for Uniformed Services Identification Card Defense Enrollment Eligibility Reporting System Enrollment), 2 February 1992, shows his marital status as "Married." 11. His DD Form 93 (Record of Emergency Data), 2 February 1992, shows his spouse's name as R____ (I____) N____ and lists "None" for children. 12. His of DA Form 2-1 (Personnel Qualification Record Part II), last reviewed on 2 February 1992, contains no entry for his spouse. 13. His Standard Installation and Division Personnel Reporting System Personnel Transcript, 7 January 1993, shows his marital status as "Married." Part VII (Retirement Information) shows his 20 years of service has not been verified and his SBP Election Coverage shows "No Election Coverage." 14. His records do not contain a divorce decree or death certificate for his former spouse. 15. He reached age 60 in April 1993. 16. His records do not contain a Notification of Eligibility for Retired Pay at Age 60. 17. He separated from the Kansas ARNG and transferred to the U.S. Army Reserve (Retired Reserve) on 17 September 1993. His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows in: * item 4 (Date of Enlistment) 7 October 1991 * item 10a (Net Service This Period) 1 year, 11 months, and 11 days * item 10b (Prior Reserve Component Service) 22 years, 1 month, and 21 days * item 10c (Prior Active Federal Service) 1 year, 11 months, and 13 days * item 10d (Total Service For Pay) 26 years and 15 days 18. His records do not contain a DD Form 2656 (Data for Payment of Retired Personnel) or orders placing him on the Retired List. 19. On 17 July 2016, he married J____ E____ P____. The marriage license does not specify the number of previous marriages of the applicant or his new spouse. 20. His records do not contain a DD Form 2656-6. 21. On 10 May 2019 in a letter to the Defense Finance and Accounting Service (DFAS) U.S. Military Retired Pay, he requested to add his new spouse as the beneficiary of his SBP. 22. The DFAS letter, 19 June 2019, notified him that DFAS was unable to process his request to add his spouse to his SBP. He was informed that to add a spouse, participants must submit an election prior to the 1-year anniversary of the date of marriage. He was additionally informed that occasionally Congress approves an open enrollment season that would allow him to add his spouse to his SBP. 23. His Total Army Personnel Database-Reserve printout, 9 May 2023, shows his address was updated on 26 April 2023. His marital status is shown as "Divorced." 24. The Department of the Army Deputy Chief of Staff, G-1, email (Reserve Component SBP/SBP Coverage), 31 May 2023, states that according to the Defense Retired and Annuitant Pay System, the applicant's account shows "No Beneficiary" since 17 September 1993 (indicating he was never enrolled in the SBP). The G-1 representative states the applicant can use the open season to enroll. 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 not warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. The Board did not find clear indication from the record whether applicant was married or divorced when he retired in September 1993. A Personnel Transcript dated 7 January 1993 (8 months prior to retirement) shows his marital status as Married but the file records do not contain a divorce decree or death certificate for his former spouse. a. If applicant was married when he retired and elected not to participate in spousal SBP coverage, it was irrevocable. Elections are made by category, not by individual spouse. As a result, he could not decide years later to participate in spousal coverage and add a subsequent spouse. In addition to not electing SBP at retirement, the evidence does not show the applicant enrolled his current spouse within one year of marriage. Therefore, the Board determined no error or injustice occurred. b. The applicant is advised that the FY2023 National Defense Authorization Act includes an SBP Open Season that began on 23 December 2022 and ends on 1 January 2024. The SBP Open Season allows for retirees receiving retired pay, eligible members, or former members awaiting retired pay who are currently NOT enrolled in 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. For retirees receiving pay, enrollment requires paying the premiums plus interest for the time since the date they were first eligible to enroll, as well as the monthly premiums moving forward. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: xx: 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. 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. 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. 2. Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 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 the member dies before age 60 but delay payment until the date of the member's 60th birthday, and (C) elect that a beneficiary receive an annuity immediately upon the member's death if before age 60. 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 the Reserve Component SBP. Reserve Component SBP coverage automatically converts to SBP coverage upon retirement. 3. 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. The Defense Finance and Accounting Service interprets the first part of Title 10, U.S. Code, section 1448(a)(5), to mean, "who is not married OR has no dependent child." 4. 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 Program 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. 5. 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 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// ABCMR Record of Proceedings (cont) AR20230000061 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1