IN THE CASE OF:
BOARD DATE: 8 November 2011
DOCKET NUMBER: AR20110003348
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, in effect, that his records be corrected to show he elected his wife as his Survivor Benefit Plan (SBP) beneficiary within a year of their marriage.
2. The applicant states he received misinformation concerning SBP. He was told that he had to wait a year after he was remarried to apply for SBP for his wife. He waited a year and then was told he could not request SBP because it had been over a year since his marriage.
3. The applicant provides his marriage license.
CONSIDERATION OF EVIDENCE:
1. The applicant was issued a 20-year letter certifying his eligibility for retired pay at age 60 in November 1995. In February 1996, he completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) in which he indicated that he was not married but had dependent children and elected SBP Children Only, Option C (Immediate Coverage), full amount of retired pay.
2. It appears he remarried in July 1999 and did not elect SBP for his then wife. He was transferred from the Army National Guard (ARNG) to the Retired Reserve in pay grade E-8 on 6 May 2005. He was placed on the Retired List on 16 February 2007.
3. On 26 May 2006, the applicant applied for retired pay for nonregular service. On an accompanying DD Form 2656 (Data for Payment of Retired Personnel), he attempted to elect spouse and children coverage. However, he was not entitled to make a new election at that time.
4. The marriage certificate provided by the applicant shows he remarried on 9 October 2009.
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 dependents.
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 one year after the date on which that person marries or acquires that dependent child.
7. The Defense Finance and Accounting Service interprets the first part of Title 10, U. S. Code, section 1448(a)(5) to mean,
who is not married OR has no dependent child
.
8. Army Echoes is an Army Bulletin for the Army Retiree published three times a year and mailed to Army retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. These Bulletins consistently contain a reminder to retirees that they are responsible for updating their accounts within one year of marriage, remarriage, divorce, or upon the death of a spouse and that they may need to make or update a SBP election. Periodically, these Bulletins contain articles explaining the SBP and the importance of keeping accounts up to date.
9. Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. Extensive publicity was given in Army Echoes.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence that the applicant applied for SBP within a year of his marriage to his then wife in July 1999.
2. Since the applicant did not apply for SBP within a year of his marriage in 1999, he could not later elect SBP unless there was an open season.
3. The applicant requested spouse and child SBP coverage when he applied for retired pay; however, he was not entitled to do so. However, that attempted election was made during an SBP open season. His actions showed an intent to make an open season SBP election to add his current. As such, it would be in the interest of justice to correct his records to show that he made a proper election to add spouse coverage during the SBP open season in 2006.
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, on 26 May 2006 during the 1 October 2005 through 30 September 2006 SBP Open Season, the applicant added spouse SBP coverage.
__________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) AR20110003348
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ABCMR Record of Proceedings (cont) AR20110003348
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