IN THE CASE OF:
BOARD DATE: 22 February 2012
DOCKET NUMBER: AR20110013902
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests a change of his Survivor Benefit Plan (SBP) coverage from "children" to "spouse only" coverage.
2. The applicant states he initially misunderstood the requirement to wait
13 months before his SBP would become effective when he spoke with Kxxxx over 12 months ago. He contends that he had the DD Form 2656-6 (SBP Election Change Certificate) ready to mail; however, after speaking with Nxxxx, he found he had surpassed the 13-month requirement by 27 days and he was no longer eligible to change his SBP election.
3. The applicant provides:
* Divorce Decree
* Certificate of Marriage
* DD Form 2656-6, dated 1 July 2011
* DD Form 2894 (Designation of Beneficiary Information), dated
25 July 2010
CONSIDERATION OF EVIDENCE:
1. He married his former spouse on 17 March 1984 and divorced her on
8 December 2000.
2. Having prior service, he enlisted in the Regular Army on 31 January 1991 and served on active duty continuously until he was medically retired on 3 September 2007 due to temporary disability.
3. On an unknown date, he elected "child only" SBP coverage. An email from the Defense Finance and Accounting Service (DFAS) confirms he made an SBP election in the Fall of 2007 upon retirement.
4. He married his current wife on 3 June 2010.
5. He submitted the following:
* An empty envelope from DFAS, addressed to the applicant and postmarked 21 June 2010
* A DD Form 2894, which shows he designated his current spouse as the sole beneficiary to receive any unpaid retired pay upon his death, on
25 July 2010
* A DD Form 2656-6, which shows he elected to change his SBP election from "child only" to "spouse only," signed and notarized on 1 July 2011
6. Item 8 of his DD Form 2656-6 clearly states "A member, who does not have a spouse at the time of initial eligibility, may provide SBP for the first spouse acquired after retirement by electing coverage before the first anniversary of that marriage." This document is signed and authenticated by the applicant.
7. Public Law 92-425, enacted on 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, is irrevocable.
8. Public Law 94-496, enacted 14 October 1976, established a waiting period of 1 year following post-retirement marriage. The legislative history of the SBP shows that Congress purpose in requiring a 1-year waiting period was to prevent sham marriages and to prevent spouses who become widows/widowers of SBP participants only by virtue of a short-term marriage after retirement from automatically receiving an annuity.
9. Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married or 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 in which that person marries or acquires that dependent child.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests a change of his SBP coverage to show he elected "spouse only" coverage within 1 year of marriage.
2. The evidence shows he initially elected "child only" coverage at the time of his retirement because he was divorced. He remarried on 3 June 2010 and on
1 July 2011 he attempted to enroll in SBP for "spouse only" coverage.
3. He contends that he misunderstood the requirement to enroll within 1 year of marriage; however, his DD Form 2656-6 clearly explains the requirement to elect "spouse coverage" before the first anniversary of marriage.
4. Public Law 94-496 established a waiting period of 1 year for vesting following post-retirement marriage to prevent spouses from automatically receiving an annuity from a short term or sham marriage. This is different from Title 10 USC 1448(a)(5) which states a person who later marries may make a written election to the Secretary concerned within one year of the marriage.
5. The evidence shows he attempted to change his election shortly after his first anniversary which would indicate his intent was to comply with the SBP election guidelines as he understood them. However, because his initial "child only" election is irrevocable, he can only add "spouse coverage."
6. As a matter of equity, it would be appropriate to correct his records to show he added spouse coverage and to collect all additional premiums from the applicant based on the date of marriage, 3 June 2010, for such coverage.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
____x___ ____x___ ____x___ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. showing he elected to add spouse SBP coverage, on 3 June 2010; and
b. having the Defense and Finance Accounting Service collect all premiums due.
2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correcting his record to show he elected spouse only coverage.
_______ _ __x_____ ___
CHAIRPERSON
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.
ABCMR Record of Proceedings (cont) AR20110013902
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20110013902
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120002256
On 24 November 2008, he elected "spouse and child" SBP coverage in anticipation of retiring. The applicant requests a change of his SBP coverage to show he elected "spouse only" coverage within 1 year of marriage. The evidence provided by the applicant shows on that on 16 February 2011 he requested to change/add his new spouse as his SBP beneficiary which was approximately 25 days beyond the 1-year period to make such an election.
ARMY | BCMR | CY2010 | 20100020346
The applicant requests correction of his military records to show he enrolled in the Survivor Benefit Plan (SBP) and elected spouse only coverage within one year of his marriage. The applicant provides a notarized SBP Election Change Certificate, dated 28 July 2010, wherein he elects "Spouse Only Coverage" and "Full Retired Pay." In view of the above Government error, it would be appropriate to correct his records to show he elected spouse coverage within one year of his marriage and to...
ARMY | BCMR | CY2012 | 20120018320
He states, in effect, prior to marriage to his current spouse he went to Retirement Services and he was told he had to wait until he had been married for 1 year to sign his wife up for survivor benefits. The evidence of record shows the applicant was not married when he elected child only SBP coverage based on full gross retired pay on 14 September 2010. Following marriage to his current spouse on 2 May 2011, he had a 1 year period to make an election to add his spouse as an SBP beneficiary.
ARMY | BCMR | CY2010 | 20100015270
He states that he and the former service member (FSM) lived together as husband and wife for 3 years prior to the date of their marriage. By letter, AR-PERSCOM, Transition and Separations Branch notified the applicant that he was not eligible for the FSMs SBP annuity because he and the FSM were not married for one full year before the FSMs date of death. Public records show the applicant and the FSM were married on 26 February 2009.
ARMY | BCMR | CY2012 | 20120010361
The DA Form 2656-6, Section III (Conditions that Trigger Eligibility to Change Coverage), Number 8 (I Am Requesting a Change in Coverage Based On:), shows the FSM marked the "Marriage" block which stated, "A member, who does not have a spouse at the time of initial eligibility, may provide SBP for the first spouse acquired after retirement by elective coverage before the first anniversary of that marriage. He and the applicant were married on 7 August 2009. The evidence of record shows her...
ARMY | BCMR | CY2015 | 20150000945
The applicant married his current spouse in Florida on 8 December 2013 and on 19 December 2013, the applicant completed a DD Form 2656-6 (SBP Election Change Certificate) at the Fort Rucker Retirement Services Office (RSO) electing spouse only at the full retired rate. It is also noted that the applicant was on the TDRL at the time he attempted to enroll his spouse and was subsequently permanently retired. As a result, the Board recommends that all Department of the Army records of the...
ARMY | BCMR | CY2010 | 20100022811
A DD Form 2656 (Data for Payment of Retired Personnel) provided by DFAS shows the following: * retirement date 1 October 2004 * spouse F____ * child S____ with a date of birth of 23 July 1991 * SBP election 26b, coverage for spouse and child(ren) * date signed 7 July 2004 4. DFAS stated in an email to this Board, dated 9 May 2011, the FSM's DD Form 2656 was submitted by Fort Carson on 3 November 2004 and shows he elected spouse and child(ren) coverage. The applicant and the FSM...
ARMY | BCMR | CY2012 | 20120020844
The applicant requests enrollment in the Reserve Component Survivor Benefit Plan (RCSBP) for "spouse and child" coverage, Option C. 2. His record contains a transaction history which shows he received a 20-year letter on 19 October 2000 but did not make an RCSBP election, then he got married on 24 June 2004 but did not make an RCSBP election within the one year anniversary date. The evidence of record shows that upon receiving his 20-year letter on 19 October 2000, the applicant did not...
ARMY | BCMR | CY2009 | 20090020841
The applicant states the following: * he was never informed he had to decline the SBP within 1 year of his divorce from his former spouse * he received no written communications from the military to keep him informed of these circumstances * the Tennessee Army National Guard requested that he complete a DD Form 2656 (Data for Payment of Retired Personnel) in 2008 for inclusion in his application for retired pay * he completed the DD Form 2656 and declined SBP 3. On 18 October 1991, the...
ARMY | BCMR | CY2014 | 20140007495
The applicant requests, in effect, correction of his records to show he elected Survivor Benefit Plan (SBP) coverage for his spouse within one year of his remarriage. The applicant provides: * DD Form 2656-6, dated 4 April 2014 * Certificate of marriage (Connie), dated 12 February 2013 * Emails to DFAS * Notification of Eligibility for Retired Pay at Age 60 * DD Form 1883 (SBP Election Certificate) * DD Form 2656 (Data for Payment of Retired Personnel), dated 7 July 2008 * National Guard...