RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            5 May 2005
      DOCKET NUMBER:   AR20040008063


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |Member               |
|     |Ms. Laverne V. Berry              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show he elected
to participate in the Survivor Benefit Plan (SBP) for spouse coverage in a
timely manner.

2.  The applicant states that he mailed their marriage certificate in
September [2003], then faxed them (the Defense Finance and Accounting
Service (DFAS)) a letter and another copy of their marriage certificate in
February (sic) [2004].  DFAS said they received the fax in February 2004
but did not receive the one mailed in September 2003, so it did not get
there within 1 year of their marriage.  He feels his wife should have the
SBP.  He cannot control the mail.  His wife got her identification card in
February 2003 and she was entitled to TRICARE, so they (the Army) had to
have known he was married.

3.  The applicant provides no supporting evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 9 June 1976.  On 9
November 1977, he was placed on the Temporary Disability Retired List due
to head and other injuries incurred in an automobile accident.  He was
divorced at the time and, due to the nature of his injuries, the Army made
the SBP election on his behalf and elected to decline to participate in the
SBP.

2.  The applicant was permanently retired by reason of physical disability
on        1 December 1979.

3.  The applicant married on 14 December 2002.  He apparently sent his
marriage certificate to DFAS in September 2003.  On 16 January 2004, he
faxed his marriage certificate to DFAS and indicated on the fax cover
sheet, "2nd request to have SBP changed to ___..."

4.  Public Law 92-425, enacted 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.  A
base amount (the maximum is an annuity based on full retired pay; the
minimum is an annuity based on $300; or an annuity may be based on any
amount in between).

5.  The National Defense Authorization Act for Fiscal Year 2005 establishes
an Open Season to be conducted 1 October 2005 to 30 September 2006.  It
required that enrollees live two years from the effective date of election
for beneficiaries to be eligible for an annuity.  The retiree must pay
monthly premiums starting on the date of enrollment and a buy-in premium
covering all the costs that would have been paid for the election if it had
been made at the first opportunity to do so.

6.  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
one year after the date on which that person marries or acquires that
dependent child.

DISCUSSION AND CONCLUSIONS:

1.  The applicant retired in 1977.  He married again on 14 December 2002.

2.  The law requires that an SBP election be made, in writing, within one
year of the date of post-retirement marriage.  The applicant acknowledges
that all he did in September 2003 was to send a copy of his marriage
certificate to DFAS.  The law does not allow DFAS to initiate SBP
enrollment solely upon receipt of a marriage certificate (for one reason
because a post-retirement marriage does not automatically entitle the
spouse to the SBP).  When he faxed his marriage certificate to DFAS with
the fax cover sheet annotated, "2nd request to have SBP…" in January 2004,
the 1-year window had passed.

3.  The applicant will have a 1-year opportunity, beginning on 1 October
2005, in which to enroll in the SBP.  He should contact his nearest
Retirement Services Officer (RSO) now for further information and to
determine the optimum base amount that would be appropriate in his
circumstances.  A copy of the RSO Directory will be provided to him.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jea___  __lgh___  __lvb___  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.




            __James E. Anderholm__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008063                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050505                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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