IN THE CASE OF:
BOARD DATE: 24 March 2011
DOCKET NUMBER: AR20100020953
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 that his spouse be enrolled as his beneficiary under the Survivor Benefit Plan (SBP) with full spouse coverage.
2. The applicant states he never designated an SBP beneficiary before and he mistakenly thought he had a 1-year waiting period before he could enroll his spouse. He goes on to state that after 1 year he submitted his SBP election and it was rejected by officials at the Defense Finance and Accounting Service (DFAS) because he was 9 days late. He also states that prior to submitting his SBP election, he contacted officials at DFAS and he thought he had a 1-year waiting period; however, he is hearing impaired and may have misunderstood.
3. The applicant provides copies of:
* a letter to DFAS requesting enrollment of his spouse in the SBP
* his marriage license
* a response from DFAS
* a letter explaining his application
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 3 July 1948. On 17 February 1993, while serving as a U.S. Army Reserve major, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).
2. On 24 August 1994, the applicant submitted a letter to the U.S. Army Reserve Personnel Center (Retired Activities) indicating he decided to change his DD Form 1883 (SBP Election Certificate), dated 11 December 1993, from Insurable Interest Election to declining participation at that time. He went on to state he was not married at that time and could not show proof of financial benefit for his non-relative beneficiary. He also indicated that he reserved the right to enroll in the SBP in the event that he married.
3. On 29 August 1998, he was transferred to the Retired Reserve in the rank of lieutenant colonel due to maximum length of service.
4. On 8 June 2009, the applicant married his current spouse and on 17 June 2010 he dispatched a letter to DFAS requesting that his spouse be enrolled in the SBP as his beneficiary.
5. On 20 June 2010, DFAS responded to the applicant's request indicating he had 1 year from his marriage to designate his spouse as his beneficiary under the SBP and since 1 year had elapsed since his marriage, he was too late to enroll. He was further advised that he may be able to enroll if an open season is designated by Congress in the future.
6. There is no evidence in the applicant's official records to show he ever notified DFAS that he was married within the 1-year statutory period.
7. Public Law 92-425, enacted 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.
8. Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976, reduced the waiting period for a new spouse's eligibility from 2 years to 1 year following post-retirement marriage.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his records should be corrected by adding his spouse as his SBP beneficiary. However, the applicant has not provided and his records do not contain any evidence to show the applicant notified DFAS that he was married within 1 year of his marriage which would have made him eligible to elect his spouse as his SBP beneficiary.
2. Accordingly, the applicant's next opportunity to enroll his spouse in the SBP will come if and when Congress next declares an open season. Accordingly, the applicant is advised to read Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.
3. While the applicant's position is certainly appreciated, the provisions for enrolling a spouse within 1 year of the marriage are very clear in the laws that govern such enrollment. The applicant's failure to enroll his spouse within 1 year does not constitute an error or injustice on the part of the Army.
4. In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant failed to submit evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ____X___ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
2. The Board wants the applicant and all others concerned to know that action in no way diminishes the sacrifices made by him in service to the United States.
The applicant and all Americans should be justifiably proud of his service in arms.
____________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) AR20100020953
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ABCMR Record of Proceedings (cont) AR20100020953
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