2. The applicant requests in effect, correction of his military records to show that he elected SBP (Survivor Benefits Plan) for spouse and children vice children only. He states, in effect, that at the time of his retirement, he elected SBP for his children since he was not married at that time. He married his current spouse on 11 June 1995 and contacted the Defense Finance and Accounting Service (DFAS) in Cleveland, Ohio, asking for assistance in changing the SBP enrollment to add his current spouse. The DFAS-CL, denied his request for spouse coverage and advised the applicant to apply to this Board.
3. The applicant was born on 1 August 1951. He enlisted in the Regular Army on 14 November 1974 with 2 years, 8 months and 28 days of prior service. His service was continuous through extensions and reenlistments. The applicant was divorced on 18 December 1987, while still on active duty. He was granted custody of his three children. His former spouse declined retirement benefits and shortly thereafter remarried. The applicant retired on 1 May 1992 with more than 20 years of creditable active service in pay grade E-7. Since the applicant was single at the time of his retirement, he elected children only coverage for his dependent children at the full base amount. He correctly completed the DA Form 4240. By law, he was then able to enroll a subsequent spouse within one year of his remarriage.
4. The applicant remarried on 11 June 1995. Shortly, thereafter, the applicant contacted DFAS-CL for assistance in enrolling his current spouse in the SBP. DFAS-CL mistakenly informed the applicant that since he had excluded his former spouse at retirement he excluded any future spouse. DFAS-CL denied the applicants application, but advised him to apply to this Board.
5. Public Law 92-425, the SBP, enacted 21 September 1972, 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. The election made by the soldier was irrevocable.
6. The law further provides that a person who is not married upon becoming eligible to participate in the Plan, but who later marries 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. The election is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned.
7. In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the SBP Board, which recommended that the applicants request be approved and that the change should be retroactive to the first day of the month following the 1 year anniversary of the marriage to his current spouse.
CONCLUSIONS:
1. The evidence of record shows that the applicant was not married at the time of his retirement in 1992, and therefore elected SBP participation only for his dependent children at the full base amount. He correctly completed the DA Form 4240, indicating his single status in block 10a and marking block 14, Are you married ? with No. By law, he was then eligible to enroll a subsequent spouse within 1 year of his remarriage.
2. However, DFAS-CL mistakenly informed the applicant that since he had excluded his spouse at retirement he excluded any future spouse and his application was denied by DFAS-CL.
3. There appears to be no evidence of negligence on the part of the applicant. Therefore, in view of the foregoing, findings, conclusions and the advisory opinion, it would be appropriate to correct the records as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected by showing that the individual concerned enrolled his current spouse in the SBP effective
1 July 1996 with retroactive payment of costs.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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