IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100020346 


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 one year of his marriage.

2.  The applicant states that in approximately May 2009 he went to the Family Services office at Cannon Air Force Base to inquire about enrolling his future spouse in the SBP.  He was told that she would not be eligible until they had been married for one year and to come back then.  At that time no information was given to him.  After being married for a year, he went back only to find out that he was beyond the one year window to complete the paperwork.  He contends he failed to enroll his spouse within a year of his marriage due to a misunderstanding. 

3.  The applicant provides a copy of his marriage certificate and a notarized DD Form 2656-6 (SBP Election Change Certificate), dated 28 July 2010.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the New Mexico Army National Guard on 12 August 1986 and he served continuously in the ARNG until he was transferred to the Retired Reserve on 27 May 2001.

2.  He was issued his twenty-year letter on 18 August 2000.  On 6 October 2000, he completed a DD Form 1883 (SBP Election Certificate) in which he confirmed he was not married and had no dependent children.  In item 9c he elected option A, which stated he declined to make an election at the time and   he would remain eligible to make an election for coverage at age 60.

3.  On the same date, he completed an AHRC Form 3854 (Reserve Component Supplement SBP Election Certificate (RC-SSBP)).  Again, he declined coverage and indicated he did not have a spouse or dependent children.

4.  According to the Defense Finance and Accounting Service (DFAS) officials he completed a DD Form 2656 on 26 January 2006 and again indicated he had no spouse or dependent children.

5.  On 25 January 2008, he turned age 60 and began receiving his non-regular retirement pay.

6.  On 4 July 2009, he married his current spouse.

7.  The applicant provides a notarized SBP Election Change Certificate, dated 
28 July 2010, wherein he elects "Spouse Only Coverage" and "Full Retired Pay."

8.  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.

9.  Public Law 94-496, enacted 14 October 1976, established a waiting period of 1 year following post-retirement marriage.  The legislative history of the SBP shows that Congress’ purpose in requiring a 1-year waiting period was to prevent sham marriages and to prevent spouses who become widows/widowers of SBP participants only by virtue of a short-term marriage after retirement from automatically receiving an annuity.

10.  Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married upon becoming eligible to participate in SBP but who later marries 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 in which that person marries. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be allowed to enroll in the SBP for spouse only coverage because he was not properly informed by his servicing personnel office to enroll within 1 year of his marriage.

2.  The evidence shows he initially declined RCSBP coverage at the time of his transfer to the Retired Reserves because he was unmarried and had no dependent children.  He married on 4 July 2009, and on 28 July 2010 he attempted to enroll in SBP for "Spouse Only" coverage.

3.  He contends that he was misinformed by his servicing personnel office that he could not apply for SBP coverage for his spouse until he had been married for one year.  Public Law 94-496 established a waiting period of one year for vesting following post-retirement marriage to prevent spouses from automatically receiving an annuity from a short term or sham marriage.  This is different from Title 10 USC 1448(a) (5) which states a person who later marries may make a written election to the Secretary concerned within one year of the marriage.  

4.  The evidence shows he attempted to change his election shortly after his first anniversary date, within 24 days, which would indicate his intent was to comply with the SBP election guidelines and is consistent with the misinformation he allegedly received from Government officials.   

5.  In view of the above Government error, it would be appropriate to correct his records to show he elected spouse coverage within one year of his marriage and to collect premiums from the applicant based on the date of his marriage, 4 July 2009, for such coverage.

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 to enroll for spouse-only SBP coverage based on his full retirement pay, effective 4 July 2009; and having

	b.  the Defense and Finance Accounting Service collect any premiums due.



      _______ _   _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)                                         AR20100020346





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ABCMR Record of Proceedings (cont)                                         AR20100020346



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