IN THE CASE OF:
BOARD DATE: 16 September 2014
DOCKET NUMBER: AR20140002478
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 correction of his records to show he elected Survivor Benefit Plan (SBP) coverage for his spouse within 1 year of his marriage.
2. The applicant states his current election is "No Beneficiary, Spouse Excluded." He wants that changed to "Spouse." He was never informed that if he were married and declined the spouse coverage he would not be allowed to elect SBP coverage for his new wife.
3. The applicant provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 28 February 2007
* DD Form 2656 (Data for Payment of Retired Personnel), dated 25 October 2006
* Divorce decree, dated 24 March 2011
* Certificate of marriage, dated 6 December 2012
* DD Form 2656-6 (SBP Election Change Certificate)
* Retiree Account Statement, January 2014
CONSIDERATION OF EVIDENCE:
1. He enlisted in the Maryland Army National Guard on 22 August 1991. He entered active duty on 31 December 1991. He served in a variety of assignments and he attained the rank/grade of master sergeant (MSG)/E-8.
2. He and Sonia were married on 11 October 1987.
3. On 25 October 2006, as he approached 20 years or more of active Federal service and in connection with his upcoming retirement, he submitted a
DD Form 2656 in which he stated that he was married to Sonia. In the "Beneficiary Category" block, he placed an "X" in "I elect coverage for children only" based on the full gross pay.
* He listed the name of his son, Nicholas, born in January 1989
* His spouse, Sonia, concurred with his election. His spouse Sonia and a witness authenticated this form with their signatures
4. He retired from active Federal service on 28 February 2007 in the rank/grade of MSG/E-8 by reason of sufficient service for retirement after completing more than 20 years of active Federal service. He was separated at Fort Meade, MD.
5. On 15 February 2011, he and Sonia executed a Property and Settlement Agreement. Their agreement stipulated that his spouse's (Sonia) share of his military retirement was 25 percent and his share of Sonia's military retirement was 15 percent. They both agreed to waive any right to share each other's military retired pay by signing this agreement.
6. On 24 March 2011, the applicant and Sonia were divorced. Their divorce decree incorporated their Property and Settlement Agreement.
7. On 6 December 2012, the applicant married Tammy. There is no indication he notified the Defense Finance and Accounting Service of his remarriage or requested to enroll his spouse in the SBP within 1 year of his marriage.
8. The applicant provides a copy of a DD Form 2656-6, dated 15 February 2013. He indicated his current coverage is "Suspended," he is requesting a change in coverage based on his remarriage, and he wishes to resume his existing level of coverage for his new spouse. He and a witness authenticated this form with their signatures and a notary public notarized it.
9. The applicant provides his January 2014 Retiree Account Statement. It shows the entry "No SBP Election is Reflected on Your Account."
10. 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, is irrevocable except in certain circumstances as provided by law.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that in connection with his retirement by reason of sufficient active duty service, the applicant completed a DD Form 2656 and elected "children only" SBP coverage. He was married to Sonia at the time and his spouse concurred with his election. Once he elected children only coverage, he was forever barred from making a spouse election except as provided for by law (i.e., during an Open Season). He retired from active Federal service on 28 February 2007.
2. It appears the applicant was stationed in a major metropolitan area when he retired. He provides insufficient evidence to show he was unable to attend a pre-retirement briefing or was improperly briefed concerning the SBP.
3. On 24 March 2011, the applicant and Sonia were divorced. Their child, Nicholas, turned 21 in January 2010. It appears child coverage was suspended as the child aged off.
4. On 6 December 2012, the applicant married Tammy.
5. When he failed to elect spouse prior to retirement he irrevocably forfeited future spouse coverage except during a Congressionally-approved open enrollment period. The law last established an Open Season to be conducted from 1 October 2005 through 30 September 2006. It is unknown if or when the next Open Season will be.
6. He completed a DD Form 2656-6 on 15 February 2013; however, this form could not be processed since there was no Open Season in effect at the time he completed this form.
7. The decision to enroll in or disenroll from the SBP is a personal decision made by the member and his/her family. Regrettably, there is an insufficient evidentiary basis for granting the applicant's requested relief.
BOARD VOTE:
________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
__________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) AR20140002478
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140002478
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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