IN THE CASE OF:
BOARD DATE: 16 October 2008
DOCKET NUMBER: AR20080012020
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 that his Survivor Benefit Plan (SBP) be corrected to show that he elected his wife as his beneficiary, at 100 percent of his base pay.
2. The applicant states that while the Defense Finance and Accounting Service (DFAS) has informed him that he did not elect his wife as a SBP beneficiary, he doesnt recall making that election.
3. The applicant adds that he has been married for 38 years and believes that his wife is entitled to his benefits.
4. The applicant does not provide any additional documentation in support of his request.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he was a Guardsman serving on extended active duty in pay grade E-6 when he was honorably released from active duty on 19 April 1990 and placed on the Temporary Disability Retired List (TDRL) the following day.
3. On 6 January 1995, the applicant was removed from the TDRL and placed on the Retired List the following day for physical unfitness.
4. In the processing of this case the DFAS stated that the applicant elected SBP, Child Only, on 20 April 1990. The DFAS added that the applicant had three open seasons in 1992, 1998, and 2005 to add his wife. Since the applicant did not name his wife as a beneficiary when he elected SBP and did not change his SBP beneficiary during the three open seasons, he is not now authorized to add his wife as a beneficiary.
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. Elections are made by category, not by name. Changes in SBP options are not authorized except in specific instances, or authorized by law.
6. Public Law 99-145, dated 8 November 1985 (but effective 1 March 1986), required spousal concurrence in anything less than full spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. According to the DFAS, the applicant elected SBP, Child Only, and did not changed his beneficiary despite having three open seasons to do so.
2. While it is unfortunate that the applicant doesnt recall making his election, documentation at the DFAS shows that the applicant has the coverage he requested child only. This election would have required the applicants spouses concurrence.
3. As such, there is no basis in which to grant the applicants request.
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) AR20080012020
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ABCMR Record of Proceedings (cont) AR20080012020
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