BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100023200 


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 spouse in the Survivor Benefit Plan (SBP).

2.  He states his SBP Enrollment Election, dated 24 October 2005, was not to disenroll his child, but to add his spouse.  The form was confusing.  He wants to provide financial support for his spouse in case of his death.

3.  He provides:

* Retiree Account Statement
* DD Form 2656-6 (SBP Election Change Certificate)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant enlisted in the Regular Army on 14 March 1979 for 4 years.  He continuously served though multiple reenlistments.  

3.  On 30 October 1998, he completed and signed a DD Form 2656.  In Section VII (SBP Election) he elected coverage for "Children Only" based on full gross retired pay.  He listed his dependent children's dates of birth as 17 June 1983, 6 January 1987, and 11 August 1998.  Section VIII (SBP Spousal Concurrence) shows on 30 October 1998 his spouse at the time concurred with his election with her signature.  This form was verified by the counselor on the same day.

4.  He was honorably retired on 31 October 1998 for length of service for retirement.

5.  His records do not contain a completed, signed, and dated 24 October 2005 DD Form 2656 (Data for Payment of Retired Personnel) showing his SBP coverage election.

6.  In a letter, dated 19 October 2007, the applicant requested his current spouse be added to the SBP.  He stated they had been married for about 6 years.

7.  On 13 January 2011, the ABCMR requested from the applicant a copy of his DD Form 2656 and Defense Finance and Accounting Service (DFAS) Retiree Account Statement.  He provided his Retiree Account Statement and a DD Form 2656-6, dated 17 January 2011.

8.  He provided his Retiree Account Statement, effective 1 December 2010, which shows deduction of SBP costs of $15.79 for "Child Only" coverage.  The child's date of birth is listed as 11 August 1998 (13 years of age).  

9.  He also provided a DD Form 2656-6 he completed and signed on 17 January 2011.  In Section II (Current Coverage) he marked the "No Coverage" block.  Section III (Conditions That Trigger Eligibility to Change Coverage) he marked the "Remarriage" and number "4" (Select coverage to his new spouse if his current coverage is former spouse coverage blocks.  In Section IV (Requested Change to Coverage) he marked the "Spouse Only" block.  In Section VI (Spouse and Child(ren) Information) he listed his current spouse's name and their date of marriage as 14 June 2002.

10.  On 24 March 2011, a staff member of the Defense Finance and Accounting Service (DFAS), Retired Pay, Cleveland, OH, verified the applicant completed a DD Form 2656 on 30 October 1998, his election was for child only and his spouse concurred.  Since he declined coverage for the first spouse, the applicant could not cover the new spouse.  There also was no evidence of a submitted DD Form 2656, dated 24 October 2005.  

11.  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.  Children remained eligible for coverage until age 18 or 22, if a student.  If disabled before age 18, or 22 if a student, children would remain eligible to receive the SBP annuity for life.  SBP costs for child coverage stop when there is no longer an eligible child beneficiary.

12.  Public Law 92-496, effective 1 October 1976, reduced the waiting period for new spouse's eligibility to 1 year following post-retirement marriage.  

13.  Public Law 108-374, enacted 28 October 2004, established an open enrollment period (1 October 2005 to 30 September 2006) for members not participating to the fullest possible extent to elect coverage if none in effect.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant completed a DD Form 2656 on 30 October 1998 electing SBP coverage for "Children Only" and his spouse at the time concurred.  He retired on 31 October 1998.  

2.  He alleges that he changed this election on 24 October 2005 for spouse only coverage due to his marriage on 14 June 2002.  He provided a completed a DD Form 2656-6, dated 17 January 2011, wherein he elected "Spouse Only" SBP coverage.

3.  Having first declined spouse coverage though married at the time of his retirement, the applicant was required by law to elect spouse coverage during an Open Season to make that beneficiary change.  There is no evidence that he attempted to enroll his current spouse for coverage during an Open Season.

4.  At least one open season enrollment period occurred since his discharge.  Unfortunately, his current spouse will not be entitled to an annuity under the SBP unless he is able to enroll her during a future open season, which would incur buy in costs and back premiums.  Further, it would be inappropriate to forgive the debt and in essence provide free coverage.  

5.  He has not provided sufficient evidence of intent on his part and the only intent clearly proven is that he elected and intended to provide child coverage only at the time of his retirement and any eligible date thereafter.  Therefore, there is no legal basis to grant the applicant relief.

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)                                         AR20100023200





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ABCMR Record of Proceedings (cont)                                         AR20100023200



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