IN THE CASE OF:
BOARD DATE: 06 April 2010
DOCKET NUMBER: AR20090010858
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 he be enrolled in the Survivor Benefit Plan (SBP).
2. The applicant states he retired on 30 September 2005 and does not live near any military installations. He applied for SBP for his spouse on 23 February 2009 and was subsequently advised that he was not eligible. He did not know that he had only 1 year from the date of his marriage to apply for SBP coverage.
3. The applicant provides copies of his SBP enrollment request, his wife's identification card (ID), and his marriage certificate.
CONSIDERATION OF EVIDENCE:
1. The applicant, a career Army National Guard (ARNG) Soldier, was born on 16 June 1953. He enlisted in the ARNG on 15 November 1972 and served until 15 November 1978.
2. He had a break in service from 16 November 1978 through 12 August 1983. He enlisted in the ARNG on 13 August 1983 and he served as an Active Guard Reserve (AGR) Soldier from 23 April 1984 through his retirement on
30 September 2005.
3. At the time of retirement he was divorced with no dependent children. There is no indication of any SBP election for a former spouse at the time of retirement.
4. The applicant married his current wife, Sabrina, on 11 May 2007. On 20 July 2007, he obtained a military dependent's identification card for her and updated his Defense Enrollment Eligibility Reporting System (DEERS) information to include her.
5. On 23 February 2009, he sent a letter to the Defense Finance and Accounting Service (DFAS) requesting immediate SBP coverage for his spouse.
6. DFAS notified him that he was not eligible since he had not applied within
1 year of his marriage.
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.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he attempted to enroll in SBP for his current spouse on 23 February 2009 and was subsequently advised that he was not eligible to enroll. He did not know that he had only 1 year from the date of his marriage to apply for SBP coverage.
2. The applicant remarried approximately 2 years after he retired. While he updated DEERS and obtained an ID card for his new spouse shortly after he remarried, he did not formally apply for spousal coverage under SBP until approximately 1 year and 9 months after his marriage.
3. Federal law requires that a retired Soldier make an application within 1 year of marriage to be able to elect immediate coverage under Reserve Component Survivor Benefit Plan or SBP. The applicant submitted his application many months beyond the allowable time allowed.
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. 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) AR20090010858
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ABCMR Record of Proceedings (cont) AR20090010858
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