IN THE CASE OF:
BOARD DATE: 4 May 2011
DOCKET NUMBER: AR20100023726
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 record by changing his Survivor Benefit Plan (SBP) election to add his new spouse as his beneficiary.
2. The applicant states he served for 22 years and has been retired for 17 years. He claims when he remarried, the requirement to change his SBP election to add his new wife did not immediately come to mind. As soon as he became aware of the requirement, he applied to change his SBP election and add his new wife; however, his request was rejected because he had exceeded the 1 year requirement by 2 1/2 months. He requests that his error to timely file be overlooked and that he be allowed to provide survivor protection for his wife.
3. The applicant provides his marriage certificate and a Defense Finance and Accounting Service (DFAS) letter, dated 23 August 2010, in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows he was honorably retired on 31 October 1992 in the rank of sergeant first class/E-7 and placed on the Retired List on 1 November 1992. At the time of his retirement, he completed 22 years and 1 day of active military service.
2. The record contains a DA Form 4240 (Data for Payment of Retired Army Personnel) completed during his retirement processing. It shows the applicant was not married at the time of his retirement but did have dependent children. This document further confirms he elected full children-only SBP coverage and named a daughter, age 15 at the time, and a son, age 12 at the time, as dependent children. The form was authenticated by the applicant with his signature on 7 October 1992.
3. On 30 May 2009, the applicant married his current spouse.
4. On 20 July 2010, the applicant completed a DA Form 2656-6 (SBP Election Change Certificate) requesting a change to his SBP coverage based on his marriage of 30 May 2009.
5. On 23 August 2010, DFAS informed the applicant his request to add his spouse to the SBP could not be processed and he would have to wait until an open season was announced to change his election.
6. 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 an annuity after death to surviving dependents.
7. Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married or 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 to cover such individuals. 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's contention that his failure to file his request within the 1-year time frame should be overlooked and his record should be corrected to reflect full spouse SBP coverage for his new spouse has been carefully considered. Although he failed to file within the time frame required, there are equity considerations in this case that support relief.
2. The evidence of record clearly shows the applicant immediately requested to change his SBP election upon discovering the requirement and that his request was made only 2 1/2 months after the 1-year time requirement had expired.
3. Given the applicant had been retired for more than 17 years, his failure to completely understand the SBP election change filing requirement is understandable. Therefore, since he did submit his request to change his SBP election a short time after the filing time requirement, it was clearly his intention to provide his spouse SBP protection at the time he married her. As a result, it would be appropriate and serve the interest of equity to correct the applicant's record to show he filed to change his SBP election to add his spouse on the date of his marriage, 30 May 2009, and that the request was approved. The applicant's DFAS record should be corrected accordingly and all premium costs associated with the election change will be borne by the applicant.
BOARD VOTE:
____X____ __X______ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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 showing his request for a change to his SBP election to add spouse coverage was submitted and approved within the 1-year time frame required. All premium costs associated with this election and coverage change will be collected from the applicant's retired pay.
___________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) AR20100023726
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100023726
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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