IN THE CASE OF:	  

		BOARD DATE:	        26 August 2008

		DOCKET NUMBER:  AR20080008515 


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 to enroll in the Survivor Benefit Plan, spouse coverage, within one year of his marriage.

2.  The applicant states that he was not aware of the SBP and that when he learned of this program, he tried to enroll, but was told he only had one year from the date of marriage to do so.  He is willing to pay back premiums from the time he was married, if his enrollment is accepted.

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  Marriage Certificate, dated 16 September 2004.

	b.  Letter, dated 25 April 2008, from the Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay, London, Kentucky.  

4.  On 8 August 2008, by fax, the applicant submitted a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 9 August 1968 and a self-authored letter, dated 8 August 2008, stating he is undecided about enrollment.





CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s DD Form 214 shows he enlisted in the Regular Army for a period of 3 years on 1 June 1966 and was trained in military occupational specialty 11B (Light Weapons Infantry).  This form also shows he served in the Republic of Vietnam for a period of 3 months and 25 days and that he retired on 9 August 1968 by reason of permanent physical disability.

3.  There is no indication that the applicant was married at the time of retirement or that he made an SBP election.

4.  On 14 September 2004, the applicant was married to his current spouse "Leatha."  

5.  On 24 March 2008, by letter, the applicant notified the Retired and Annuity Pay Office at DFAS that he was interested in becoming an active participant in the SBP and that he was willing to pay back premiums from the date of marriage if his enrollment was accepted.

6.  On 25 April 2008, by letter, DFAS notified the applicant that a review of his retired pay account indicated he declined to participate in the SBP.  As a result, SBP coverage could not be elected.  

7.  In his 8 August 2008 self-authored letter, the applicant states that at the time of his application he thought his marriage was going to last; however, he is now going through a divorce.  He inquires whether he should pursue this issue any further.  



8.  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, was irrevocable except in certain circumstances.  This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

9.  Public Law 92-425, 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 surviving spouse and dependent children of a member who dies on active duty after becoming eligible to receive retired pay are automatically entitled to an SBP annuity.  This law also provides that if an active duty service member dies after becoming eligible for military retired pay, but before its award, or while on active duty after retirement, an annuity is payable to the eligible spouse in an amount equal to the difference between any Dependency Indemnity Compensation (DIC), payable by the Veterans Administration (now known as the Department of Veterans Affairs or DVA) and 55 percent of what military pay would have been on date of death

10.  Public Law 92-425, enacted 21 September 1972, established the SBP.     Upon creation of the SBP, an 18-month Open Season was conducted from       21 September 1972 through 20 March 1974 in which all pre-1972 retirees were given the option to enroll.  The Department of the Army contacted all previously retired service members and explained to them the benefits and procedures provided by SBP.  This was done on several occasions.  

11.  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.  

12.  Public Law 108-375, enacted 28 October 2004, established an SBP Open Season from 1 October 2005 through 30 September 2006 that allowed members who declined or had less than maximum SBP coverage an opportunity to elect to participate in increasing their coverage up to a maximum base amount of their gross retired pay.



DISCUSSION AND CONCLUSIONS:

1.  When the applicant was married on 14 September 2004, he had the option to enroll in the SBP.  However, by law, he had one year to request, in writing, SBP spouse coverage for his wife and was required to submit a copy of his marriage certificate upon application.  He did not do so. 

2.  The only other legitimate period during which the applicant could have enrolled his spouse in SBP coverage following the 1-year anniversary of their marriage was during an authorized Open Season, which was last conducted from 1 October 2005 to 30 September 2006.  Again, the applicant made no effort to enroll.  

3.  The applicant had two opportunities to enroll in the SBP since he was married.  However, there is no evidence that he did so.  Therefore, there is insufficient evidence on which to base granting the applicant the requested relief.

4.  With respect to the applicant’s question whether he should pursue SBP enrollment or not, the applicant is advised that this is a personal decision that he should make with all the known facts.  If he desires to learn more about SBP enrollment, he should contact a Retirement Services Officer (RSO) at the nearest military installation.  Those individuals can best advise a retiree about SBP eligibility, enrollment, premiums, and other related issues.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


															XXX
      ______________________
               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)                                         AR20080008515



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ABCMR Record of Proceedings (cont)                                         AR20080008515



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