IN THE CASE OF:	  

		BOARD DATE: 	        9 June 2009 

		DOCKET NUMBER:  AR20090001754 


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 added his present spouse to the Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, he and his wife were not informed of the requirement to submit the SBP paperwork for spouse coverage before their first wedding anniversary.

3.  The applicant provides copies of a New York State, Department of Health, New Scotland District, District Number 157, Certificate of Marriage Registration, recorded on 17 February 2005; two DD Forms 2656-6 (SBP Election Change Certificates), dated 28 November 2007 and 17 December 2008; Headquarters, U.S. Army Human Resources Command (USA HRC), Transition and Separations Branch, St. Louis, Missouri, memorandum, dated 22 August 2008; National Personnel Records Center (NPRC), Military Personnel Records (MPR), St. Louis, Missouri, letter, dated 15 October 2008; and The Honorable Michael R. M______, Congress of the United States, 21st District, New York, letter, dated 
23 October 2008.

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’s military personnel records show he enlisted in the Army National Guard of the United States (ARNGUS) and New York Army National Guard (NYARNG) on 27 October 1977.  The applicant’s records show his date of birth (DOB) is __ April 1959.  The applicant was ordered to active duty for training, completed basic combat and advanced individual training, and was awarded military occupational specialty 76D (Materiel Supply Specialist).  The applicant attained the grade of sergeant (SGT)/pay grade E-5, effective and with a date of rank of 1 October 1985.

3.  The applicant’s military personnel records contain a copy of Headquarters, NYARNG, Latham, New York, memorandum, dated 31 October 1997, subject:  Notification of Eligibility for Retired Pay at Age 60.  This document shows the applicant was notified that he had completed the required years of service and would be eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10, U.S. Code, Chapter 67.

4.  The applicant was ordered to active duty in support of Operation Joint Forge, on 29 July 1999, served in Bosnia from 28 August 1999 to 6 March 2000, and was honorably released from active duty on 30 March 2000.

5.  The applicant’s military personnel records contain copies of Headquarters, Office of The Adjutant General, State of New York, Latham, New York, Orders 177-1079, dated 26 June 2003, and NGB Form 22 (Report of Separation and Record of Service) with an effective date of 23 June 2003.  These documents show the applicant was honorably discharged from the ARNGUS and NYARNG on 23 June 2003 and transferred to the U.S. Army Reserve Control Group (Retired), effective 24 June 2003.  At the time he had completed 25 years,
7 months, and 27 days of total service for retired pay.

6.  In support of his application, the applicant provides the following documents:

   a.  New York State, Department of Health, New Scotland District, Certificate of Marriage Registration, recorded, on 17 February 2005, shows in pertinent part, that the applicant married B______ A__ D___ on 12 February 2005.
   
   b.  DD Form 2656-6, dated 28 November 2007, that shows the applicant indicated his current SBP coverage is child only coverage; based on marriage he requested a change in SBP coverage to spouse and child coverage; and he elected level coverage based on full retired pay.  This document also shows the applicant indicated his daughter’s DOB is __ December 1984 and she is not disabled.

   c.  Headquarters, USA HRC, Transition and Separations Branch, St. Louis, Missouri, memorandum, dated 22 August 2008, shows the Chief, Transition and Separations advised the applicant that his request for enrollment in the Reserve Component Survivor Benefit Plan (RCSBP) was returned without action because the applicant should have submitted the request before the first anniversary of his marriage.
   
   d.  DD Form 2656-6, dated 17 December 2008, that shows the applicant indicated his current SBP coverage is child only coverage.  Based on marriage he requested a change in SBP coverage to spouse and child coverage, and he elected level coverage based on full retired pay.  This document also shows the applicant indicated his daughter’s DOB is __ December 1984 and she is not disabled.

   e.  NPRC, MPR, St. Louis, Missouri, letter, dated 15 October 2008, and a letter, dated 23 October 2008, from The Honorable Congressman from the 21st District, New York show the applicant was advised that the NPRC has no authority to review and approve amendments or corrections to military records and that he may apply to the ABCMR.

7.  The applicant’s records are absent any documents related to his enrollment in the RCSBP or a request for change to his RCSBP.

8.  In connection with the processing of this case, coordination was made with the Defense Finance Accounting Service (DFAS).  A DFAS official confirmed the applicant was a future retiree and that the DFAS did not have any information on the applicant relating to his SBP.

9.  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.  Retiring members and spouses were to be informed of the SBP options and effects.

10.  Title 10, United States Code, Chapter 73 (10 USC, 1447 et. seq.), provides the basic statutory provisions of SBP law.  This statute provides that the SBP was designed to give income protection not only to the retiree's spouse, but also to their children until they become self-supporting (i.e., until they are no longer dependents).  This document also provides that child coverage may be elected with or without spouse (or former spouse) coverage and that children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22, if still in school.  A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 22, if a full time 
student); however, marriage at any age will terminate a child's eligibility.  In 
addition, if a retiree elects former spouse and children coverage, only those eligible children from the marriage between the retiree and his former spouse are covered.

11.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provides a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (a) elect to decline enrollment and choose at age
60 whether to start SBP participation; (b) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member’s 60th birthday; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60, or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  An election, once made, is irrevocable except under certain circumstances provided for by law.

12.  Pursuant to Title 10 USC, section 1448(a)(5), a retired member who marries after retirement and who, at the time of marriage, has no dependent children and has not previously elected for spouse coverage may, within one year of the marriage, elect to cover his spouse under the SBP.

13.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  Extensive publicity was given this SBP Open Season on Department of Defense websites, Army Echoes (the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army), other Army publications, and by military veteran organizations.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The 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, in effect, that his records should be corrected to show he added his present spouse to the SBP.

2.  The evidence of record shows, on 31 October 1997, the applicant was notified that he had completed the required years of service and he would be eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10, U.S. Code, Chapter 67.  The evidence of record indicates the applicant elected child coverage and named his daughter as his designated SBP beneficiary.

3.  The evidence of record shows the applicant’s daughter was 22 years of age (i.e., less than one month shy of her 23rd birthday) and not disabled when the applicant submitted a DD Form 2656-6 on 28 November 2007 to change his SBP coverage from child only coverage to spouse and child coverage based on his marriage that occurred on 12 February 2005.  Thus, it appears the applicant’s daughter was not eligible for SBP coverage at that time.  In addition, the applicant’s application was submitted more than one year after his marriage to his current spouse.

4.  The evidence of record shows that the applicant’s daughter was 23 years of age (i.e., and less than two days shy of her 24th birthday) and not disabled when the applicant submitted a DD Form 2656-6 on 17 December 2008 to change his SBP coverage from child only coverage to spouse and child coverage based on his marriage that occurred on 12 February 2005.  Thus, again, it appears the applicant’s daughter was not eligible for SBP coverage at that time.  In addition, the applicant’s application was submitted more than one year after his marriage to his current spouse.

5.  By law, incident to a member’s marriage/remarriage, a member who has no dependent children and has not previously elected spouse coverage, has one year from the date of marriage to provide an annuity for his spouse by making such an SBP election.

6.  There is no evidence of record to show that the applicant took the necessary action to notify USA HRC or DFAS officials to request a change pertaining to the category of his SBP election from child to spouse and child coverage within one year of his marriage (i.e., on 12 February 2005), as is required by law.  In this regard, the two DD Forms 2656-6 submitted by the applicant to change his SBP coverage were submitted well after the one-year period of marriage and did not satisfy the strict requirement for spouse SBP coverage.  In addition, there is no evidence the applicant submitted an application for spouse coverage during the SBP Open Season conducted from 1 October 2005 through 30 September 2006.  Thus, in view of all of the foregoing, there is no basis for correcting the applicant’s military service records.  Therefore, relief cannot be granted in this case.

7.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  Moreover, 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.

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)                                         AR20090001754



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ABCMR Record of Proceedings (cont)                                         AR20090001754



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