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SBP Open Season—Is DFAS intentionally ignoring the NDAA 2023?

Military retirees may be eligible to make an election at certain times—upon retirement, immediately following a divorce or marriage, etc.—that would allow their surviving spouse or children to collect an annuity if the veteran were to pass before the designated family members or annuitants. The intent is to allow select family members to benefit from the military pension that the service member earned. Unfortunately, this is not a well-understood benefit, and many service members, veterans, and spouses are never properly educated on the strict timelines and requirements related to SBP elections. In fact, there is a common misunderstanding among the force that changes can be made at future SBP Open Seasons if the veteran or spouse is interested in changing their elections. The reality is that the government has failed to hold Open Season enrollment periods as they should have, leaving thousands—maybe hundreds of thousands—of veterans and spouses in a position to never be able to benefit from this hard-earned entitlement. Congress, in the NDAA 2023, attempted to correct this longstanding injustice.

The NDAA 2023 included a provision requiring DFAS to establish an open enrollment period to run from December 23, 2022, through January 1, 2024, which was intended to finally allow veterans and their spouses to correct their elections and elect to take advantage of a benefit they are entitled to. Veterans can elect to discontinue SBP or make changes that would allow them to correct the designee for potential future annuity payments should the family member or designated annuitant outlive the veteran. In typical government fashion, DFAS took far too long to publish the forms and procedures for these elections, which has further prejudiced veterans and potential annuitants.

Despite having an Open Season that started on December 23, 2022, DFAS first published the forms and procedures for electing SBP and correcting annuitants on or about March 14, 2023—nearly three months into the 12-month Open Season period. As a result of the government’s failure to timely act, many veterans have passed away, and their family members are left without the entitlements the veteran earned and hoped to pass on. DFAS is doing nothing to correct its devastating inaction. Further, individuals who survived the DFAS delay and were able to file are often receiving what appear to be nefarious denials based on inaccurate facts. It’s analogous to dealing with the VA for service-connected compensation claims all over again for these veterans. Unfortunately, veterans are unnecessarily being forced to appeal decisions that are based entirely on fiction, as if the government is again trying to delay until the veteran is unable or unwilling to continue the fight.

It’s apparently not enough that Congress had to step in and force an Open Season to allow veterans to correct their SBP elections and exercise an entitlement that they fought so hard for so long to earn. Now these same veterans—the ones who survived long enough—are being denied in what appears to be an attempt to wait them out. We are currently fighting multiple cases where DFAS has already issued denials based on a misapplication of their own policy and the application of obvious factually inaccurate information. This is reminiscent of the delays associated with recognizing illnesses caused by Agent Orange and burn pit exposure.

We will remain steadfast, and our team of attorneys will continue to fight this perpetual injustice, but we want America to know what is happening to our nation’s veterans and their families. These are the men and women who fought for 20 years or more to earn these benefits, as well as the spouses and children who often made similar sacrifices to support their veterans throughout times of war and beyond. They are now being forced to jump hurdle after hurdle, despite obvious congressional intent, to collect the benefits they deserve.

As a Managing Partner at Tully Rinckey PLLC, a First Sergeant in the United States Army Reserve, and a combat veteran, Anthony Kuhn focuses much of his time on the representation of military personnel, federal employees, and federal agents. He can be reached at or at (888) 529-4543.

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