IN THE CASE OF:
BOARD DATE: 13 April 2011
DOCKET NUMBER: AR20100023916
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 records be corrected to show that he elected his spouse as his beneficiary under the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that he was married on 9 April 2009 and he made his election to enroll his spouse as his beneficiary under the SBP on 5 April 2010 and it was postmarked on 7 April 2010; however, because it was not received by 9 April 2010 the Defense Finance and Accounting Service (DFAS) would not accept the enrollment. He further states that he believed that the date the request was postmarked would serve as the receipt date and he believes that he is being unjustly punished for a simple mistake. He also states that had he known that it had to be received within 1 year, he could have express mailed it to the DFAS.
3. The applicant provides:
* A one-page letter explaining his application
* A copy of his DD Form 2656-6 (SBP Election Change Certificate) dated 5 April 2010
* Copies of responses from DFAS regarding his appeals
* A copy of his marriage license
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 16 September 1941 and was serving in the rank of lieutenant colonel (LTC) in the United States Army Reserve (USAR) when he was transferred to the USAR Control Group (Retired) on 18 January 1990. He was single at the time and elected not to participate in the SBP.
2. On 16 September 2001 he was transferred to the Army of the United States (AUS) Retired List in the rank LTC and he was still single and elected not to participate in the SBP.
3. The applicant married on 9 April 2009 and on 5 April 2010 he had his DD Form 2656-5 witnessed by the Deputy G1 at Fort Shafter, Hawaii.
4. The letters provided by the applicant with his application from the DFAS indicate that his SBP election was received at the DFAS on 16 April 2010 and because it was received after the 1 year anniversary of his marriage, his SBP election could not be implemented.
5. The applicant did not provide evidence and the available records do not contain evidence to show the date his application was postmarked.
6. 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.
7. 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.
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 one year after the date on which that person marries or acquires that dependent child.
DISCUSSION AND CONCLUSIONS:
1. Although the applicantÂ’s DD Form 2656-5 was not received by the DFAS prior to the 1-year anniversary of his marriage, the evidence submitted shows that he did complete the form and had it witnessed by appropriate authorities on 5 April 2010.
2. Additionally, it should also be considered that when the applicant received his 20-Year letter and when he was retired at age 60, he was not married and therefore had no need to be concerned with the technical aspects of enrolling a spouse in the SBP. Accordingly, his actions are not unreasonable in that he took steps to enroll his spouse in the SBP before the first anniversary of his marriage.
3. While it is recognized that his election form did not reach the proper DFAS officials until a week after his anniversary, the denial of his enrollment appears to be a harsh application of the law given the date he authenticated the form and the fact that he resides in Hawaii.
4. Therefore, in the interest of equity, it would be appropriate to correct his records by showing that his SBP election for his spouse was received in a timely manner on or about 7 April 2010 and that his spouse was properly enrolled.
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 showing that his SBP election for his spouse was received in a timely manner on or about 7 April 2010 and that his spouse was designated as his SBP beneficiary.
_______ _ _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) AR20100023916
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ABCMR Record of Proceedings (cont) AR20100023916
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