IN THE CASE OF:
BOARD DATE: 23 April 2009
DOCKET NUMBER: AR20080018163
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, enrollment in the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that one month after he married his wife, he made a phone call to inquire about electing SBP coverage for his new wife and was told he had to be married for one year in order to apply for it. He indicates that at the conclusion of his first year of marriage, he made a second inquiry to DFAS and submitted the required documents to obtain SBP coverage, as he had been told to do by DFAS personnel. He states that after submitting the SBP paperwork and subsequently making phone calls to inquire about the status of his request, he was asked to resubmit his request and supporting documents which he did via facsimile (FAX). The applicant states that he was finally informed that his request was received one year and two months after his marriage to his wife and that he should have sought SBP coverage for his spouse within one year of their marriage. He states that he followed all instructions given to him by DFAS to request SBP coverage. He states that had he not been initially misinformed, he would have timely made his election. He finally states that he faithfully served in the Army for twenty years and asks that his wife be enrolled in the SBP.
3. The applicant provides a self-authored letter, dated 28 August 2008; and a copy of his marriage license in support of his request.
CONSIDERATION OF EVIDENCE:
1. The applicants military record shows that he initially enlisted in the Regular Army and entered active duty on 21 May 1982. He continuously served until he was honorably released from active duty (REFRAD) on 31 March 2003, for the purpose of retirement. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 20 years,
10 months, and 10 days of active military service.
2. The applicants Official Military Personnel File contains no evidence to show that he elected to participate in the SBP or that he was married or had children at the time of his retirement.
3. The applicant married on 8 August 2006.
4. On 28 August 2008, the Military Pay Technician, Retired and Annuity Pay, notified the applicant that his current spouse would not be added to the SBP because his request for coverage was not received within one year of the date of their marriage.
5. 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. 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 indicates he initially contacted DFAS to pursue SBP coverage
1 month after his marriage and that he submitted his request for SBP coverage
1 year after initially contacting DFAS, as he believed he was instructed to do, and there is no evidence of record to contradict this statement; therefore, absent evidence to the contrary, it is reasonable to accept this sequence of events as fact. Further, the record shows the applicant's request for SBP coverage was processed by DFAS and denied based on the applicant's failure to apply within
1 year of his marriage.
2. The facts of this case show that at worse the applicant was provided incorrect information when he first contacted DFAS, or at best misinterpreted the DFAS comment that his wife would not be eligible to receive a SBP annuity for 1 year to mean he could not apply for 1 year. What is clear is that the applicant intended to provide SBP coverage for his wife and sought to initiate this coverage 1 month after his marriage, as evidenced by his initial contact with DFAS. The fact that his application was not submitted on time due to poor or misinterpreted counseling should not result in his being denied SBP coverage. Therefore, it would be appropriate and serve the interest of justice and equity to correct his record to show he applied for and was enrolled in the SBP with spouse coverage within 1 year of his marriage.
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 that he made and signed a written request to elect spouse coverage under the Survivor Benefit Plan and that his request was received by the Secretary concerned within one year of his marriage; that he has had full SBP Spouse Only coverage in effect since 8 August 2006, the date of his marriage to his current wife; and by collecting all SBP premiums due from his retired pay.
______ _ 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) AR20080018163
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ABCMR Record of Proceedings (cont) AR20080018163
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