IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230000643 APPLICANT REQUESTS: in effect, correction of her spouse’s record, a former service member (FSM) to show he changed his Survivor Benefit Plan (SBP) election from Natural Insurable Person (NIP) to spouse within one year of their marriage. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 May 1979 * DD Form 214 for the period ending 30 April 1992 * Memorandum: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), 5 June 2002 * DD Form 2656 (Data for Payment of Retired Personnel), 31 October 2016 * Retirement Orders C01-790174, 9 January 2017 * Marriage Certificate for applicant and FSM, * Department of Veterans Affairs (VA), 7 January 2022 * Defense Finance and Accounting Service (DFAS) Letter, 28 September 2022 * FSM’s Death Certificate, * DFAS Letter to applicant, 11 April 2023 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states she has been married to the FSM since 11 April 2018. She became aware that his SBP election was for NIP for an ex-girlfriend. The Department of Defense could not help her and stated that his ex-spouse was listed as the SBP beneficiary. On 16 October 2022, she had a power of attorney for the FSM and she signed the DD Form 2894 (Designation of Beneficiary Information) on behalf of the FSM. It is only after she contacted her US Representative, that she learned that her signature was not valid. In October, the FSM could not sign his name and was legally blind and suffering from dementia. She was his court appointed attorney-in-fact, since 15 February 2021 and tried to get his SBP coverage corrected since then and prior to the FSM’s death. 3. The applicant provides the following documents: a. DD Forms 214, which show the FSM was on active duty from 8 September 1978 to 31 May 1979 and from 5 December 1980 to 30 April 1992. b. DD Form 2656, dated 31 October 2016 shows the FSM was single at that time and did not have any dependent children. However, he made his SBP election for a NIP for his girlfriend/fiancée (at that time),. He further noted that he was engaged to his NIP election, and he wanted her to be designated as his beneficiary. This document was signed by the FSM and had a witness signature. c. State of, County of License and Certificate of Marriage shows the FSM married the applicant, on (not his girlfriend in which he gave SBP coverage for NIP). d. A letter from the VA to the applicant, dated 7 January 2022, confirmed her appointment as the FSM’s fiduciary. e. A letter, issued by DFAS to the Honorable Jim Costa (the applicant’s US Representative), which is in response to his request to add the applicant as the FSM’s beneficiary and as his spouse for SBP. DFAS states: * “Our records show that at the time of [applicant’s] retirement in 2016, he elected NIP SBP coverage for Ms.. His SBP election from his Data for Payment of Retired Personnel (DD Form 2656), signed and dated October 31, 2016, indicated he was not married at that time. * The SBP law currently permits a member to terminate NIP coverage at any time. A NIP remains an eligible beneficiary until their death, or the retiree can voluntarily stop the NIP coverage at any time. NIP coverage is non- transferrable and premiums are not refundable. * Under the SBP laws, a retiree has one year from the date of marriage to add a spouse beneficiary if, at the time of retirement, they were not married. * According to the marriage certificate supplied, the [applicant’s] date of marriage was in April 2018. We were not notified of [FSM’s] marriage to his current spouse, Mrs., until we received this inquiry from you; therefore, [applicant] cannot be names as his spouse SBP beneficiary.” f. FSM’s death certificate, which reflects he passed away on 28 January 2023, and the applicant is listed as his spouse. g. In a DFAS letter to the applicant, dated 11 April 2023 regarding the FSM’s Arrears of Pay, they stated that they could not release any funds to the applicant since someone else was listed as the beneficiary for the FSM’s Arrears of Pay based on his request. 4. The FSM’s service record shows the following documents: a. He had prior enlisted service and was appointed as a commission officer in the U.S. Army Reserve on 5 December 1980. b. On 5 June 2002, the FSM received his NOE, reflecting he had completed the required years of qualifying reserve service and was eligible for retired pay at age 60. The FSM was made aware of his Reserve Component SBP Election entitlement, which had to made within 90 days of his letter. c. On 9 January 2017, the FSM received Orders C01-790174, which reflects that he was placed on the retired list, effective 20 August 2016 in the rank of Major/O-4. 5. There is no documentation to show that the FSM was previously married or that his record contained his SBP election. 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 not 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 determined there is insufficient evidence to support correction of her spouse’s record, a former service member (FSM) to show he changed his Survivor Benefit Plan (SBP) election from Natural Insurable Person (NIP) to spouse within one year of their marriage. The Board noted that SBP rules disallow an individual (even a spouse) to make SBP elections on behalf of a servicemember or a retired servicemember using a power of attorney. 2. The Board determined based on regulatory guidance the contents of the DD 2656-5 states: “The member must sign and date the election. The member’s signature must be witnessed. The witness may not be the member’s spouse or beneficiary. The witness should not be a minor, but minority of a witness will not necessarily invalidate the member’s election. In the event a member is unable to complete his signature and instead makes his mark (such as an “X”), two disinterested persons must witness the election form. An addendum to DD 2656-5 will suffice in such situations. NOTE: An election made on behalf of the member through a power of attorney is not valid. Such an election is not binding and is without force or effect of law. DoD 7000.14-R, Financial Management Regulation, Vol. 7B, Ch. 54, para. 5.2.6. (June 2022). 3. The Board agreed, based on the evidence the FSM’s ex-girlfriend appears to be the legitimately named SBP beneficiary. The ABCMR historically has refused to grant relief in cases like this unless the current and ostensibly legitimate SBP beneficiary expressly and unequivocally waives her right to those benefits. Only one category of SBP beneficiary may receive the annuity at any one time. Favorable action by the ABCMR on behalf of the applicant would adversely affect the rights of the FSM’s ex-girlfriend. Absent the ex-girlfriend affirmatively relinquishing her SBP interest. Based on the preponderance of evidence, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 3. SBP elections are made by category, not by name. Options include: "Spouse Only," "Spouse and Child(ren)," "Former Spouse," "Children Only," "Natural Interest Person," "No Beneficiary," and "Decline." 4. The SBP law currently permits a member to terminate NIP coverage at any time. A NIP remains an eligible beneficiary until their death, or the retiree can voluntarily stop the NIP coverage at any time. NIP coverage is non-transferrable and premiums are not refundable. 5. Army Echoes is the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. The September - December 2007 (and subsequent issues) informed retirees about Pay/SBP. The bulletin provided a website as well as telephone numbers concerning "Pay inquiries and update of pay or SBP records in case of death, divorce or remarriage." 6. 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 dependent children. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000643 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1