IN THE CASE OF:
BOARD DATE: 23 October 2010
DOCKET NUMBER: AR20100008749
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 records to show he submitted a request to enroll his spouse in the Survivor Benefit Plan (SBP) within 1 year of marriage.
2. The applicant states that he was divorced at the time of retirement with no beneficiaries. He adds that he recently married his spouse in March 2008 and attempted to enroll his spouse in the SBP program through the Army Human Resources Command, St. Louis (HRC-STL) but his request was returned by the Defense Finance Accounting Service (DFAS) with no action taken.
3. The applicant provides a copy of his marriage license, dated 28 March 2008; a copy of two letters, dated 17 March 2009 and 25 March 2009, to HRC-STL; a copy of a DD Form 2656-6 (SBP Election Change Certificate), dated 24 March 2009; and a copy of a letter, dated 11 January 2010, from DFAS.
CONSIDERATION OF EVIDENCE:
1. The applicant had prior enlisted service in the Kentucky Army National Guard (KYARNG). On 1 July 1973, he was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant (2LT). He attained the rank of colonel (COL).
2. The applicant's record further shows he was retired on 30 November 2007 and placed on the Retired List in his retired rank of COL on 1 December 2007. When the applicant retired he was divorced with no dependents.
3. On 28 March 2008, the applicant remarried.
4. On 17 March 2009, the applicant submitted a letter to the Retirement Branch, HRC-STL requesting SBP coverage for his spouse with a copy of his marriage license. Apparently, the applicant did not submit a DD Form 2656-6.
5. On 24 March 2009, the applicant completed a DD Form 2656-6 and indicated that he was married and elected spouse SBP coverage based on the reduced amount of retired pay. He and a witness authenticated this form by placing their signatures in the appropriate blocks. On 25 March 2009, he resubmitted the form to the Retirement Branch, HRC-STL.
6. On 11 January 2010, DFAS responded to the applicant's letter that was received at DFAS on 10 December 2009 by denying the applicant's request for spouse SBP coverage because his request was not received within 1 year of marriage.
7. 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.
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 1 year after the date on which that person marries or acquires that dependent child.
9. The Defense 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 contends his records should be corrected to show he enrolled his spouse in the SBP within 1 year of their marriage.
2. The evidence of record shows the applicant did not have a spouse at the time of his retirement in November 2007. He and his spouse were married on
28 March 2008. The law permitted him to add his spouse within 1 year of their marriage.
3. The available evidence shows the applicant submitted his marriage license and DD Form 2656-6 to the Retirement Branch, HRC-STL, on 25 March 2009 requesting reduced spouse SBP coverage. Apparently, the Retirement Branch did not forward the applicant's SBP documents to DFAS within the 1-year date of his marriage. Therefore, it would be equitable to correct his DD Form 2656-6 to show he completed the form and elected to participate in the SBP on 24 March 2009 and to correct his applicable records to show his DD Form 2656-6 was accepted and processed by the appropriate office in a timely manner.
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 correcting his DD Form 2656-6 to show he elected to participate in spouse SBP coverage at a reduced amount of $2,200.00 on 24 March 2009 and that the
DD Form 2656-6 was accepted and processed by the appropriate office in a timely manner.
_______ 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) AR20100008749
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ABCMR Record of Proceedings (cont) AR20100008749
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