IN THE CASE OF:
BOARD DATE: 12 May 2011
DOCKET NUMBER: AR20100027839
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 he be permitted to elect coverage for his spouse under the Survivor Benefit Plan (SBP).
2. The applicant states he retired from the U.S. Army in 1987 and because his first wife had passed away a year earlier, there was no need to participate in the SBP. He remarried in February 2009 and in August 2009, he visited Fort McPherson, GA to get his spouse signed up for TRICARE and he requested information on signing up his new spouse for the SBP. He was informed that he had to wait a year before his spouse would be eligible for the SBP. He waited a year and in July 2010, he submitted a DD Form 2656-6 (SBP Election Change Certificate) but he was informed by the Defense Finance and Accounting Service (DFAS) that his spouse was not eligible for the SBP because the application had to be submitted prior to the 1-year waiting period from date of marriage. He contends that he was never informed of that feature of the SBP application process and he now realizes he was not given complete information about the SBP application process. Because of the misinformation (or misunderstanding) he received, he requests a waiver to permit him to elect SBP coverage for his wife.
3. The applicant provides:
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DD Form 2656-6
*
his State of Georgia Marriage Certificate
* a DFAS SBP denial letter, dated 23 August 2010
CONSIDERATION OF EVIDENCE:
1. The applicant retired from the U.S. Army on 31 July 1987, in the rank of colonel, after completing 30 years, 1 month, and 22 days of creditable active service.
2. He married his current spouse on 10 February 2009.
3. He provides a DD Form 2656-6, dated 23 July 2010, in which he requests SBP coverage for spouse only, full retired pay.
4. In a letter from DFAS Retired and Annuity Pay, dated 23 August 2010, the applicant was informed that they could not process his SBP request because notification of gaining spouse must have been received within 1 year of the marriage to add a spouse.
5. Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving family members. The member may elect not to participate (with their spouses concurrence, if required), but the election must be made before the first day for which the member is eligible to receive retired pay.
6. 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's request that he be permitted to elect coverage for his spouse under the SBP has been carefully considered.
2. He states that he visited Fort McPherson, GA in August 2009 to get his spouse signed up for TRICARE and he was informed that he had to wait a year before his spouse would be eligible for the SBP. It appears the information he was provided was not clear or he misinterpreted the comment that his spouse
would not be eligible to receive an SBP annuity for 1 year to mean he could not apply for 1 year from the date of his visit. The fact that his application was not submitted on time due to unclear or misinterpreted counseling should not result in his being denied SBP coverage. Therefore, it would be appropriate and serve the interest of justice and equity to correct his record to show he applied for and was enrolled in the SBP with spouse coverage within 1 year of his marriage.
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 that he made and signed a written request to elect "spouse only - full retired pay level of coverage" under the SBP on 1 March 2009;
b. showing his request was timely received and processed by the appropriate DFAS office; and
c. collecting all SBP premiums due from his retired pay as a result of these corrections.
__________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) AR20100027839
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20100027839
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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