IN THE CASE OF:
BOARD DATE: 21 September 2010
DOCKET NUMBER: AR20100007406
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 enrollment of his current spouse in the Survivor Benefit Plan (SBP).
2. The applicant states at the time of retirement, on 31 July 2006, he was unmarried and had never been married. He adds he was recalled to active duty on 1 August 2006 and married in 2007. The applicant states that in 2008 he visited the retirement service office to make plans for his second retirement. During his visit, he inquired about SBP and was informed about the requirement to add his spouse within "30 days" of his marriage.
3. The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), retirement orders, recall orders, and marriage license and certificate.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he was honorably retired from the Army National Guard on 31 July 2006 in the rank of colonel.
2. Orders M-08-601476, dated 1 August 2006, show the applicant was ordered to active duty in a retired status.
3. His license and certificate of marriage show the applicant was married on
26 March 2007. In item 8a (Number of Previous Marriages) of the applicant's marriage license is listed "0."
4. The applicant's DD Form 214 shows he served 3 years on active duty as a U.S. Army Reserve (USAR) retiree recall officer and was honorably released on 31 July 2009.
5. 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. Elections are made by category, not by name, and are irrevocable except as provided for by law.
6. 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 1 year after the date on which that person marries or acquires dependent children.
DISCUSSION AND CONCLUSIONS:
1. The evidence shows the applicant was retired on 31 July 2006 at which time he was unmarried. He married on 26 March 2007. Accordingly, he had until prior to the first anniversary of the marriage (before 25 March 2008) to make an SBP election. However, he contends he was not aware of the requirement to add his new spouse prior to their one year anniversary.
2. Considering the fact that this was the applicant's first marriage and that he went from active duty to retiree recall literally overnight which made any outprocessing more nominal than real, it is reasonable to believe he was unaware of the regulatory requirements concerning SBP elections. Therefore, it would now be appropriate, as a matter of fairness and equity, to correct his records to show that he elected SBP spouse coverage within 1 year of his marriage.
3. In view of the foregoing, the applicants records should be corrected as recommended below.
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 by:
a. showing he elected SBP spouse coverage within 1 year of his 26 March 2007 marriage;
b. showing his request was received and processed by the Defense Finance and Accounting Service in a timely manner; and
c. deducting the required monthly premiums as a result of this action.
_______ _ 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) AR20100007406
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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