IN THE CASE OF:	  

		BOARD DATE:	       22 SEPTEMBER 2009

		DOCKET NUMBER:  AR20080018574 


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 DD Form 2656-6 (Survivor Benefit Plan (SBP) Election Change Certificate) be processed.

2.  The applicant essentially states that he did not know and did not have any information that he only had 1 year from the time of his remarriage to submit his DD Form 2656-6.  He also states that he would have submitted this document within 1 year of his remarriage if he had known that and that the Defense Finance and Accounting Service did not process it because it was received 5 days late.

3.  The applicant provides his DD Form 2656-6 with a self-authored statement, both dated 22 August 2008, and a letter, dated 24 September 2008, from the Defense Finance and Accounting Service in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he was retired from the Army National Guard on 31 October 2003 after completing nearly 22 years of active duty.  His official military personnel file does not show that he completed an SBP Election Certificate in conjunction with his retirement.

2.  An inquiry to the Defense Finance and Accounting Service revealed that the applicant did not have SBP premiums being deducted from his retired pay.  It also showed that the applicant divorced his former spouse in 2000, and that his former spouse attempted to make a deemed election in 2004 which was denied because she attempted to make that deemed election more than 1 year after their divorce.

3.  The applicant provided a DD Form 2656-6, dated 22 August 2008.  This document shows that the applicant married his current spouse on 17 August 2007 and that he has no dependent children.

4.  In a letter, dated 24 September 2008, the Defense Finance and Accounting Service informed the applicant that his SBP election form could not be honored because it was received more than 1 year from the 1-year anniversary of his remarriage.  This letter also informed him that he would now have to wait for an SBP open season which is designated by Congress.

5.  The SBP is a life insurance program which pays an annuity to eligible beneficiaries upon the deaths of covered former service members.  As a Federal government insurance program partially subsidized by participant’s premiums, it is strictly governed by Federal statutes that set forth rules for its operation including eligibility for enrollment, designation of beneficiaries, and authorized changes to beneficiaries.  Retirees do not earn SBP through their service – they earn the right to participate in SBP.  As with any private insurance endeavor, it is encumbent upon individuals to timely apply to participate.

6.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and 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 1 year after the date on which that person marries or acquires that dependent child.

7.  Army Echoes, a publication sent to retired Army Soldiers, has consistently emphasized the importance of keeping retiree pay records current and that too often survivors are denied SBP benefits because the retired Soldier did not update retired pay records after getting married, divorced, remarried, being widowed, or gaining a child.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 2656-6 should be processed.

2.  The applicant's contention that he did not know and did not have any information that he only had 1 year from the time of his remarriage to submit his DD Form 2656-6 was noted.  However, Army Echoes has consistently emphasized the importance of keeping retiree pay records current.  As a result, the applicant knew or should have known of the requirement to keep his retired pay records current.

3.  By law, the applicant had 1 year from the date of his remarriage on 17 August 2007 to have an SBP election form received by the Defense Finance and Accounting Service.  Based upon the marriage between the applicant and his current spouse on 17 August 2007, and the fact that he did not attempt to make a change to his SBP election until 22 August 2008, the applicant failed to make a timely election to change his SBP as required by law.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Regrettably, in view of the foregoing, there is no basis for granting relief to the applicant in this case.

5.  The applicant is advised to read all subsequent Army Echoes publications so as to be aware of any SBP open seasons that Congress may approve in the future.

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.



      ____________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)                                         AR20080018574



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ABCMR Record of Proceedings (cont)                                         AR20080018574



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