IN THE CASE OF:
BOARD DATE: 25 AUGUST 2009
DOCKET NUMBER: AR20090005267
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 correction of his records to show he submitted a request to enroll his spouse in the Survivor Benefit Plan (SBP) within one year of their marriage.
2. The applicant states that at the time of his retirement, he was divorced with two minor children and elected children only SBP coverage. He adds that he recently married his spouse in April 2007 and attempted to enroll his spouse in the SBP program through the Defense Finance and Accounting Service (DFAS) "MyPay" automated system but his marriage license was returned by DFAS with no action taken.
3. The applicant provides a copy of his marriage license, dated 20 April 2007; a copy of a letter, dated 20 March 2009, to the DFAS, London, KY; a copy of a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate), dated 19 March 2009; a copy of a DD Form 2894 (Designation of Beneficiary Information), dated 16 March 2009; and copies of his and his spouse's military identification cards, in support of his request.
CONSIDERATION OF EVIDENCE:
1. Having had prior enlisted service, the applicant's records show he enlisted in the Regular Army (RA) on 31 May 1977 and held military occupational specialty 16D (Hawk Missile Crewmember). He served in various staff and leadership positions and attained the rank/grade of sergeant first class (SFC)/E-7.
2. The applicant's records further show he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) on 18 April 1989. He indicated that he was unmarried but had dependent children and listed his daughters Mary, born on 8 June 1978, and Cathy, born on 20 July 1979. He further elected "children only" coverage, full amount, under the SBP.
3. The applicant's record further shows he was honorably released from active duty on 30 April 1989 and placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 May 1989. He was credited with over 20 years of faithful active service.
4. On 20 April 2007, the applicant married his spouse, Betty.
5. On 20 March 2009, by letter addressed to DFAS, the applicant requested assistance from DFAS and indicated that shortly after his marriage, he updated the Defense Enrollment Eligibility Reporting System (DEERS) at the Army Reserve unit in Lubbock, TX and obtained his and his wife's military identification cards. He added that in February 2008, he filed the paperwork on "MyPay" to start the SBP for his wife and that the certified copy of his marriage license came back as shown on the envelope from DFAS on 28 February 2008.
6. 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. Since its creation, it has been subjected to a number of substantial legislative changes.
7. 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.
8. The Defense Finance and Accounting Service interprets the first part of Title 10, U.S. Code, section 1448(a)(5) to mean, "
who is not married OR has no dependent child
."
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his records should be corrected to show he enrolled his spouse in the SBP program within one year of their marriage.
2. The evidence of record shows that prior to his retirement, the applicant made an SBP election for children only coverage. He did not have a spouse at the time. He and his spouse were married on 20 April 2007. The law permitted him to add his spouse within 1 year of their marriage. The applicant contends that he filed the SBP paperwork online using the "MyPay" system to enroll his spouse but DFAS returned his marriage license without enrolling him.
3. There is no indication that the applicant completed and forwarded the proper forms to DFAS to enroll his spouse in the SBP program within one year of their marriage. "MyPay" allows a member to manage pay information; change a tax exemption; view Leave and Earnings Statements, tax documents, and allotments; change mailing address; and update an email address, among other functions. However, it does not have the capability for SBP enrollment.
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. He did not submit evidence that would satisfy this requirement. Therefore, there is insufficient evidence upon which to grant the applicant's requested relief.
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) AR20090005267
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ABCMR Record of Proceedings (cont) AR20090005267
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