IN THE CASE OF:	  

		BOARD DATE:	       12 MARCH 2009

		DOCKET NUMBER:  AR20080016748 


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, in effect, that her military records be corrected to show that she elected to participate in the Survivor Benefit Plan (SBP) for children only coverage and that all money deducted for spouse coverage be refunded to her.

2.  The applicant states, in effect, that she married in December 1996 and separated in January 1998 because her spouse was abusive and using drugs.  She claims that during their 10-year separation her spouse did not support her in her career nor did he provide support for their two children.  She indicates that she was told by the separation branch at her retirement briefing that all she had to do was send a letter to her spouse's last known address and if the letter was returned undeliverable that would be enough proof that she tried to contact him and the SBP deductions would not be taken; however, this was not true.   

3.  The applicant states that she realizes this request is almost three years after her separation but she could not afford a divorce and she did not know what options were available to her.  She states that her spouse is currently behind in child support ($13,677) because he chose not to provide for their children and he should not be entitled to this benefit.  She further states that her spouse recently contacted her to try to establish a relationship with their children and that at that time she asked him to provide a statement in support of her request.  

4.  The applicant provides a statement, dated 30 July 2008, from her spouse; a travel authorization for dependents; a marriage license; two police reports; a document from the Department of Social Services Division of Child Support Enforcement; a DD Form 2656 (Data for Payment of Retired Personnel); and a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of her application.   

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 was born on 3 December 1963.  She enlisted in the Regular Army on 4 June 1985 and remained on active duty through continuous reenlistments.  She married on 24 December 1996.

3.  The applicant provided a Military Police Report, dated 10 November 1997, which shows that on 7 November 1997 her spouse was charged with domestic disturbance, aggravated assault, and communicating a threat.  The incident summary states, in pertinent part, that the applicant and her spouse were involved in a verbal altercation which turned physical.  Her spouse pushed, grabbed, and choked her; he grabbed a knife and began poking it into her shoulder; and he told her he was going to kill her.  The applicant also provided a Military Police Report, dated 15 January 1998, which shows that her spouse was arrested for wrongful possession, smuggling, and use of marijuana.    

4.  The applicant’s DD Form 2656, dated 20 October 2004, shows she is single; however, she indicated that she had a spouse in Section VII (Dependency Information).  Section IX on her DD Form 2656 (Survivor Benefit Plan Election) shows she elected children only coverage.  Section XI (SBP Spouse Concurrence (Required when member is married and elects children only coverage, does not elect full spouse coverage, or decline coverage) on this form is blank.

5.  On 31 December 2004, the applicant retired in the rank of staff sergeant.

6.  In support of her claim, the applicant provided a notarized statement from her spouse, dated 30 July 2008.  He states that he fully supports the applicant's request to discontinue the SBP deductions and receive a full refund of any money being held on his behalf.  He states that they have been separated since January 1998, that he has had no contact until April 2008, that he did not support her during her career, and that the SBP deductions being taken out on his behalf are unjust.  He further states that if the applicant had been able to contact him prior to her retirement he would have signed the necessary documents declining the SBP deductions.

7.  On 17 February 2009, via a phone conversation, the applicant indicated that she wanted her military records corrected to show she elected to participate in the SBP for children only coverage.

8.  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.  

9.  Public Law 99-145, enacted 8 November 1985, but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.

10.  Title 10, U.S. Code, section 1448(a)(3)(C) provides that a person may make an election without the concurrence of the person's spouse if the person establishes to the satisfaction of the Secretary concerned that, due to exceptional circumstances, requiring the person to seek the spouse's consent would otherwise be inappropriate. 

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's DD Form 2656 shows that she elected to participate in the SBP for children only coverage, it appears she was automatically enrolled in the SBP for spouse and children coverage since Section XI on her DD Form 2656 is blank, indicating her spouse did not provide his concurrence for children only coverage.  

2.  The applicant has provided compelling justification why she should be granted an exception to the SBP statutory provisions, and she also provided her spouse's concurrence to her efforts. 

3.  Given the circumstances that her spouse was abusive and a drug abuser, and they had been separated since 1998, it appears that it would be equitable to correct her DD Form 2656 to show she elected to participate in the SBP with children only coverage with her spouse's consent.  

BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 
showing the applicant elected on her DD Form 2656, dated 20 October 2004, to participate in the SBP for children only coverage with her spouse's concurrence.  




      _______ _   _______   ___
               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)                                         AR20080016748



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ABCMR Record of Proceedings (cont)                                         AR20080016748



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