IN THE CASE OF:	  

		BOARD DATE:	    18 February 2010

		DOCKET NUMBER:  AR20090008231 


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 had no eligible spouse at the time of his retirement and that he submitted a request to enroll his current spouse in the Survivor Benefit Plan (SBP) in a timely manner.

2.  The applicant states, in effect, that the database maintained by the Defense Finance and Accounting Service (DFAS) incorrectly shows that he declined SBP coverage for spouse and child at the time of his retirement in 1991.  He also states that at the time, he was divorced and he had two adult children who were both working full time, one was attending college, and the other was within four months of starting college.  The applicant contends that given the fact that he had no spouse and the status of his children, he was advised to decline all SBP coverage.  He adds that he remarried in 1997 and he attempted to enroll his new spouse in the SBP program during the Fiscal Year 2006 (FY06) Open Enrollment Period (Open Season) after discovering the error.  The applicant states that his Personnel Management Officer at the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, informed him that he could not change his SBP enrollment option at that time due to the fact that he was being reassessed onto active duty as a retiree recall and that the error should be corrected when he
re-retires following his period of recalled active duty service.  The applicant concludes that he is willing to pay all back premiums in order to enroll his current spouse in the SBP.


3.  The applicant provides a self-authored statement and copies of his divorce decree, a DD Form 2656 (Data for Payment of Retired Personnel), retirement orders, recall to active duty orders, and a marriage license as documentary evidence in support of his request.

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 records show he served in various staff and leadership positions throughout his active duty career as a Reserve Component officer in the Active Guard Reserve (AGR).  He attained the rank/grade of major
(MAJ)/O-4 in the Transportation Corps officer area of concentration.

3.  The applicant provides an Arizona Superior Court, Maricopa County, Decree of Dissolution of Marriage, dated 24 December 1990, which shows his marriage to M---- V----- F------- was dissolved.  This document also shows the applicant retained all retirement benefits acquired through his military service and that they were free from claim or interest of his aforementioned former wife.

4.  U.S. Army Reserve (USAR) Personnel Center, St. Louis, MO, Orders
P-05-010051 show the applicant was retired from active service, and released from assignment and duty on 30 November 1991.  These orders also show he was placed on the retired list and assigned to the USAR Control Group (Retired) in the retired rank/grade of MAJ/O-4 effective 1 December 1991.

5.  On 25 November 1991, in applying for retired pay benefits, the applicant completed a DD Form 2656.  Items 10 and 14 of this form show his marital status at the time was single.  Item 15g shows the applicant elected to decline SBP coverage.  In Items 17e-h, the applicant indicated that he had two dependent children and provided their pertinent information.

6.  On 25 April 1997, the applicant married his current spouse, A----- A------- 
U------, in Kleberg County, TX.

7.  The first entry in the USAHRC – St. Louis Soldier Management System shows the applicant discussed volunteering to be recalled to active duty is dated 6 July 2006.

8.  The applicant provides four USAHRC, St. Louis, orders, dated 9 November 2006, 25 October 2007, 3 October 2008, and 19 October 2009, which show he was initially recalled to active duty from the retired list effective 12 November 2006 and his tour of active duty has been extended until 11 November 2010.

9.  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.

10.  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.  However, if a person has eligible dependents in either category and chooses to decline coverage they are precluded from adding subsequent dependents except during Open Season Enrollment periods.

11.  DFAS 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…."

12.  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 two 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that prior to his retirement in 1991, the applicant made an SBP election to decline all coverage.  Evidence also shows that although he had dependent children at the time, he did not have a spouse; therefore, he actually only elected to decline children coverage.  The applicant and his current spouse were married on 25 April 1997.  

2.  When retired Soldiers are recalled to active duty, although they are not "unretired," their retired pay and SBP premiums are suspended until they are subsequently released from active duty again.  Retirees recalled to active duty are not afforded an opportunity to modify their SBP elections when they are released from active duty.  Once recalled Soldiers are released from active duty, their retired pay and SBP premiums resume based upon their initial elections.

3.  When the applicant attempted to enroll his new spouse in the SBP during the FY06 Open Season, he was incorrectly informed that he could not change his SBP enrollment option at that time due to the fact that he was being reassessed onto active duty as a retiree recall and that he would have to wait until he was released from active duty and returned to the retired list in order to change his SBP election.

4.  In the interest of equity, the applicant's records should be corrected to show that he submitted a request to enroll his current spouse in the SBP during July 2006 to be effective 1 August 2006 and that his enrollment request was timely received and processed.  He will be required to pay a buy-in premium plus all the costs that would have been paid for the election if it had been made at the first opportunity to do so.

BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show 

that he enrolled his current spouse in the SBP during July 2006 and that his application was timely received and processed by the appropriate agencies to be effective 1 August 2006.



      _______ _  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)                                         AR20090008231



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ABCMR Record of Proceedings (cont)                                         AR20090008231



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