IN THE CASE OF:
BOARD DATE: 27 May 2010
DOCKET NUMBER: AR20090018133
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 his military records be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage.
2. The applicant also requests reconsideration of an earlier request for award of the Purple Heart. However, on 5 February 1997, the Army Board for Correction of Military Records denied the applicant's request for award of the Purple Heart. Since the applicant's request for reconsideration for award of the Purple Heart was not received within one year of the ABCMR's original decision, this portion of his request will not be discussed further in these Proceedings.
3. The applicant states:
* he sent all the proper paperwork in three months after his marriage (15 November 2006) and his wife is still not his SBP beneficiary
* he read Army Echoes
* his wife gets paid monthly by the Department of the Army for caring for him
* he was in Vietnam three times and suffered with Agent Orange and has never been compensated for it
4. The applicant provides:
* marriage license
* Army Regulation 15-185 (Army Board for Correction of Military Records)
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 20 September 1961 and remained on active duty through continuous reenlistments. He served in Vietnam from 20 August 1965 to 19 August 1966 and from 14 November 1970 to 15 August 1971.
2. The applicants DA Form 4240 (Data for Payment of Retired Army Personnel), dated 16 February 1983, shows he was not married and he enrolled in the SBP for dependent children only.
3. The applicant retired on 31 March 1983 in the rank of sergeant first class.
4. Defense Finance and Accounting Service (DFAS) records show his election for children only terminated on 1 July 2006.
5. The applicant married on 15 November 2006.
6. DFAS records show the applicant notified that office of his marriage on
15 October 2008.
7. 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.
8. 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.
9. 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
."
DISCUSSION AND CONCLUSIONS:
1. The applicant married on 15 November 2006 and he had one year from his date of marriage to enroll in the SBP for spouse coverage.
2. Although the applicant contends he sent the proper paperwork in three months after his marriage, he provided no evidence (letters to DFAS, etc) to support his contentions. DFAS records show he notified that office of his marriage on 15 October 2008.
3. Since there is no is evidence which shows the applicant attempted to enroll in the SBP within one year of his marriage, regrettably, there is no basis for granting the applicant's request. The applicant should continue to read Army Echoes which would alert him to the possibility of enrolling his spouse in the SBP during an Open Enrollment Season, if and when Congress should declare another Open Enrollment Season.
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) AR20090018133
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ABCMR Record of Proceedings (cont) AR20090018133
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