BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100018044 


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 his military records be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage.  

2.  The applicant states:

* He retired as a single Soldier in 1986
* He remarried on 14 February 2009 but he did not request coverage for his spouse until 12 May 2010
* He knew he was required to submit changes to his retired pay but he was unaware of the one year time frame for the SBP
* This was not done intentionally but his intent is to do the right thing for his spouse
* He missed the cut by four months but he hopes the Board will honor his request without having to wait until an Open Season

3.  The applicant provides a marriage certificate in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army in July 1957 and remained on active duty through continuous reenlistments.    

2.  The applicant’s DA Form 4240 (Data for Payment of Retired Army Personnel), dated 21 January 1986, shows he was not married, he had dependent children, and he declined SBP coverage.  
3.  The applicant retired on 30 April 1986 in the rank of master sergeant.  

4.  The applicant married on 14 February 2009.

5.  The applicant concedes he did not submit a written election to participate in the SBP within one year of his 2009 marriage. 

6.  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.  

7.  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 one year after the date on which that person marries or acquires that dependent child. 

8.  DFAS 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…."

DISCUSSION AND CONCLUSIONS:

1.  The applicant married on 14 February 2009 and he had one year from his date of marriage to enroll in the SBP for spouse coverage.  

2.  By his own admission, he tried to enroll in the SBP in May 2010.

3.  There is no evidence of Government error nor is there injustice.  Regrettably, there is no basis for granting the applicant's request.  He should continue to read Army Echoes which would alert him to the possibility of enrolling his spouse in the SBP during an Open Enrollment Season if, and when, Congress should declare another Open Enrollment Season.

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)                                         AR20100018044



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018044



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1