IN THE CASE OF:
BOARD DATE: 26 August 2010
DOCKET NUMBER: AR20100007240
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 military records to show he enrolled in the Survivor Benefit Plan (SBP) and elected spouse only coverage within 1 year of their marriage.
2. The applicant states he forgot to enroll within one year after his remarriage.
3. The applicant provides a copy of a letter from the Defense Finance and Accounting Service (DFAS), dated 5 November 2009. He indicated that his marriage license was included but it was not attached to the application when received.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 20 December 1971 and he served on active duty continuously until his retirement on 31 May 1993.
2. On 12 April 1993, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel). He indicated he did not have a spouse and he had dependent children. He elected to decline SBP coverage.
3. On 31 May 1993, the applicant was retired by reason of length of service. He was transferred to the U.S. Army Reserve (USAR) Control Group (Retired) and placed on the Retired List on the following day.
4. The applicant stated he married his current wife on 19 April 2008.
5. A letter from DFAS, Retired and Annuity Pay, dated 5 November 2009, denied the applicant's 7 October 2009 request to enroll in the SBP because it was not received within 1 year of his marriage. DFAS stated an Open Season Enrollment Period is occasionally offered to retirees to allow them to enroll in SBP. Open Seasons Enrollments are announced in the retiree newsletter.
6. Public Law 92-425, enacted on 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. Elections are made by category, not by name.
7. Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married or 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 1 year after the date in which that person marries or acquires that dependent child.
8. Retiree Account Statements are sent by DFAS to retirees each time there is a change in the retiree's retirement pay. This normally happens at least once a year to reflect the cost of living increase awarded to retirees. This statement shows whether or not SBP premiums are being deducted from a retiree's retirement pay and shows the current amount of SBP coverage.
9. Army Echoes is an Army Bulletin for the Army Retiree published three times a year and mailed to Army retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. These Bulletins consistently contain a reminder to retirees that they are responsible for updating their accounts within 1 year of marriage, remarriage, divorce or upon the death of a spouse; and that they may need to make or update a SBP election. Periodically, these Bulletins contain articles explaining the SBP and the importance of keeping accounts up to date.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be allowed to enroll in the SBP for spouse only coverage because he forgot to enroll within 1 year of his remarriage.
2. The applicant would have received at least one Retiree Account Statement within the 1-year period after his new marriage. This statement would have shown no SBP premiums being deducted from his retired pay.
3. Issues of Army Echoes consistently contain a reminder to retirees that they are responsible for updating their accounts within one year of marriage, remarriage, divorce or upon the death of a spouse that they may need to make or update an SBP election. Based on his date of marriage, the applicant would have received at least three issues of Army Echoes within the 1-year period after his remarriage.
4. In view of the above, there is insufficient evidence that would warrant granting the relief requested.
5. 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 that requirement.
6. The applicant is advised to continually check future issues of Army Echoes for Open Season Enrollment periods wherein he can then enroll in the SBP.
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) AR20100007240
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100007240
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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