IN THE CASE OF:  

		BOARD DATE:	  14 May 2009

		DOCKET NUMBER:  AR20080019127 


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, correction of his records to show he elected to enroll in the Survivor Benefit Plan (SBP) with spouse coverage within 1 year of his date of marriage.

2.  The applicant states, in effect, that he has tried unsuccessfully to correct his record to show enrollment in the SBP, with spouse coverage, since the date of his marriage, on 9 April 2005.  He states he is very frustrated with the lack of support he received from Retirement Services Officers (RSO) at two Army installations and from employees within the Defense Finance and Accounting Service (DFAS).  The applicant wrote his senator asking for assistance stating that Government employees quoted him policy, but did not provide guidance or assistance to him and now he is seeking an exception to the SBP entitlement policies.  

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

	a.  Marriage Certificate, dated 9 April 2005;

	b.  Retiree Account Statement, dated 2 December 2007;

	c.  Spouse's State of Georgia Amended Birth Certificate;

	d.  Applicant's State of Georgia Driver's License; 

	e.  Letter, dated 28 April 2008, to DFAS authenticated by the applicant;

	f.  Letter, dated 17 July 2008, from DFAS, Retired and Annuity Pay, London, Kentucky; and

	g.  Letter written to his United States Senator, dated 28 August 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s separation DD Form 214 (Certificate of Discharge or Release from Active Duty) is not available for the Board to review.  Records do show that the applicant reenlisted on 18 December 1989 for a period of five years in the rank/grade of staff sergeant/pay grade E-6.  The DD Form 4-1 (Enlistment/Reenlistment Document) dated 18 December 1989 shows the applicant had completed 14 years, 5 months, and 2 days of total previous active military service and his primary military occupational specialty was 71L30 (Administrative Sergeant). 

2.  The applicant retired from active duty on 31 July 1995.  He apparently was not married at that time but had two dependent sons.

3.  On 9 April 2005, the applicant married his current spouse, "D______ J___ W____."  

4.  On 28 April 2008, by letter, the applicant notified the DFAS Retired and Annuity Pay Office that he was married and he wanted to change his SBP to add his spouse, "D______ J___W____," as his beneficiary in lieu of his two sons.  

5.  On 17 July 2008, by letter, DFAS notified the applicant that a review of his retired pay account indicated he had elected SBP for child(ren) coverage since he had no eligible spouse at the time of his retirement from the Regular Army.  The letter further stated that the applicant did not notify DFAS within 1 year from his date of marriage and as a result, SBP spouse coverage could not be elected now based on known SBP laws.  

6.  In support of his application, the applicant wrote to his United States Senator requesting his assistance on 28 August 2008.  In his letter the applicant stated, in effect, that he married, on 9 April 2005, and that shortly after his marriage he sent the appropriate paperwork to DFAS Retirement Pay requesting SBP spouse coverage.  

	a.  He further stated that, on 2 December 2007, he reviewed his Retiree Account Statement and noted that he did not have an SBP election.  He then faxed DFAS the required documents, on 9 January 2008.

	b.  He further stated that, on 26 April 2008, he personally inquired and was telephonically informed that DFAS did not have his request.  He stated he faxed his SBP request again on or about 28 April 2008 to DFAS.

	c.  On 11 August 2008, he received a letter, dated 17 July 2008, from DFAS which stated that by law he could not receive SBP coverage for his spouse because he had not submitted his request within 1 year of his date of marriage.  Since the receipt of this DFAS letter, the applicant stated he personally sought assistance from two RSOs in Georgia.  He stated, in effect, that he was very frustrated with the lack of support shown to him as a Veteran by Government employees at the RSOs and DFAS.  He stated, in effect, that the Government employees quoted policy and did not render him personal assistance by helping him favorably attain SBP entitlements. 

7.  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.

8.  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 1 year after the date on which that person marries or acquires that dependent child.  

9.  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. 

10.  Army Regulation 600-8-7, Army Retirement Services states Army policy and procedures for the Survivor Benefit Plan (SBP) program as prescribed by public law; publishes the HQDA retiree bulletin Army Echoes; develops policy for the operation of the Army installation Retirement Services Program; and administers the Army Chief of Staff's (CSA) Retiree Council.  Army Echoes is an authorized bulletin published three times a year. Its purpose is to keep retired Soldiers informed of their rights and privileges, to update them of developments in the Army, and to inspire goodwill and a desire to support the Army in the civilian community.  The Army Echoes publishes the dates of the SBP open seasons, once established by legislative action through Congress.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to SBP spouse coverage based on his date of marriage (9 April 2005).  By law, he had 1 year to request, in writing, SBP spouse coverage for his wife and at the time of his application he was required to submit a copy of his marriage certificate.  

2.  The second legitimate period during which the applicant could have enrolled in SBP spouse coverage following the 1-year anniversary of their marriage was during an authorized Open Season established by Public Law 108-375 which was conducted from 1 October 2005 to 30 September 2006.  Again, the applicant's record and his supporting documentation shows he did not enroll during this Open Season. 

3.  The applicant had two opportunities to enroll in the SBP with spouse coverage since his date of marriage on 9 April 2005.  However, while the applicant states that he requested SBP for his wife in a timely manner, there is no documentary evidence that he did so.  Therefore, there is insufficient evidence on which to base granting the applicant the requested relief.  

4.  The applicant is encouraged to seek the counsel of his local RSO and to read Army Echoes, published by Department of the Army for updates on SBP Open Season enrollment periods. 

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)                                         AR20080019127



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ABCMR Record of Proceedings (cont)                                         AR20080019127



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