IN THE CASE OF:	  

		BOARD DATE:	       14 OCTOBER 2009

		DOCKET NUMBER:  AR20090002025 


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 records be corrected to change his Survivor Benefit Plan (SBP) election from children-only to spouse-only.

2.  The applicant states, in effect, that at the time he made his SBP election, he was unmarried and elected the child only option for his daughter who was a college student at the time.  He goes on to state that he subsequently remarried and changed all of his insurance policies to make his current spouse his beneficiary and now needs to change his SBP election to make his spouse the beneficiary.

3.  The applicant provides a copy of his marriage license and copies of his spouse's driver's license, Social Security Account Number Card, and passport.

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 24 October 1946 and on 28 January 1998, while serving as a lieutenant colonel (LTC) in the Colorado Army National Guard (COARNG), he was issued his Notification of Eligibility for Retired Pay at Age 60 with 15 years of service (also known as a 15-year letter).

3.  On 24 February 1998, he completed a DD Form 1883 (SBP Election Certificate) in which he indicated that he was not married and elected the child only option (Option C - immediate coverage) for his daughter who was born on 14 July 1978.  At the time he signed the DD Form 1883, he acknowledged that he understood that the decision made with respect to participation in the SBP is a permanent irrevocable decision.

4.  He was honorably discharged from the COARNG on 5 April 1998 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired).

5.  The applicant was married in Bermuda on 30 October 1999 and on 24 October 2006, when he turned age 60, he was retired in the rank of LTC and placed on the Army of the United States (AUS) Retired List.

6.  There is no evidence in the applicant's official records to show that he ever notified either the Army or the Defense Finance and Accounting Service (DFAS) within the 1-year statutory period of his marriage, that he was married.  The applicant's daughter turned 22 years of age on 14 July 2000, at which point she became ineligible to be the applicant's beneficiary.

7.  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.

8.  Public Law 94-496, enacted 14 October 1976, but effective 1 October 1976, reduced the waiting period for a new spouse's eligibility from 2 years to 1 year following post-retirement marriage.  

9.  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 one year after the date on which that person marries or acquires that dependent child.  

10.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  Extensive publicity was given in 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.  

11.  All issues of Army Echoes going back at least to the January - March 1998 issue carry the reminder: “REMEMBER:  You (emphasis in the original) are responsible for updating your retired pay file information at DFAS-CL (address below) within one year of the event if you marry, remarry, have a child, are widowed, or divorced and need to make or update a SBP election.”

12.  Army Echoes, Issue 1, January - April 2005 first alerted retirees that an SBP Open Enrollment period would run from 1 October 2005 - 30 September 2006.

13.  Army Echoes, Issue 3, September - December 2005, first alerted retirees that the retiree who enrolled in the SBP during the Open Enrollment period must pay monthly premiums starting on the date of enrollment and a one-time buy-in enrollment premium.  It provided an internet site that would aid retirees in calculating their cost.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to change his SBP election from children-only to spouse-only.

2.  The applicant submitted a DD Form 1883 electing children-only coverage.  At the time he submitted the DD Form 1883 on 5 May 1991, he was not married to his current spouse.  At the time he signed the DD Form 1883, he acknowledged that he understood that the decision made with respect to participation in the SBP is a permanent irrevocable decision.

3.  The applicant's contentions have been noted.  However, the applicant has not provided and his records do not contain any evidence to show that the applicant notified either the Army or the DFAS within 1 year of his marriage, that he had married, which would have made him eligible to elect the change of his SBP beneficiary to add his spouse. 

4.  In addition, the applicant married in 1999 and since that time there has been at least one SBP Open Season that allowed an SBP Open Enrollment period during the period of 1 October 2005 - 30 September 2006.  Extensive publicity is given to Open Seasons.  There is no available evidence to show that he took advantage of that option.

5.  Accordingly, the applicant's next opportunity to enroll his spouse in the SBP will come if, and when, Congress next declares an Open Season.

6.  In order to justify correction of a military record the applicant must show 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.



      _________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)                                         AR20090002025



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ABCMR Record of Proceedings (cont)                                         AR20090002025



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