IN THE CASE OF:	  

		BOARD DATE:	  12 January 2012

		DOCKET NUMBER:  AR20110012640


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, through his Member of Congress, reconsideration of his previous request for correction of his records to show he submitted a request to enroll his spouse in the Survivor Benefit Plan (SBP) within one year of their marriage.

2.  In separate correspondence to his Member of Congress, the applicant states:

* he served 28 years and retired in the rank of lieutenant colonel (LTC)/O-5
* he previously submitted a request for his spouse to be enrolled in the SBP; however, that request was denied because it was not submitted within 1 year of his date of marriage (it was 9 days late)
* he suffers from hearing loss, and if necessary, his request should be considered favorably under the Americans with Disabilities Act
* he does not consider it likely that there will be another open enrollment season in the near future
* he hopes the Board members will view his request with compassion

3.  The applicant provides:

* a letter to his Member of Congress
* a list of enclosures
* a Consent for Release of Information form from the office of his Member of Congress
* a letter to the Army Board for Correction of Military Records (ABCMR), dated 28 July 2010
* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 28 July 2010
* a letter to Defense Finance and Accounting Service (DFAS), dated         17 June 2010
* a response letter from the Defense Finance and Accounting Service (DFAS) to the applicant, dated 20 July 2010
* State of Florida Marriage Record
* multiple ABCMR documents pertaining to Docket Number AR20100020953

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100020953 on 24 March 2011.

2.  The applicant did not provide any new evidence; however, he submitted a new argument through his Member of Congress, which was not previously considered by the Board; therefore, this new argument will now be considered by the Board.

3.  On 3 July 1948, the applicant was born.
 
4.  On 30 July 1970, he was appointed as a Reserve commissioned officer of the Army, in the rank/grade of second lieutenant/O-1.  

5.  On 17 February 1993, while serving in the U.S. Army Reserve (USAR), in the rank/grade of major/O-4, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

6.  On 11 December 1993, he completed a DD Form 1883 (SBP Election Certificate), wherein he requested SBP coverage for a natural person with an insurable interest (his current spouse).

7.  On 24 August 1994, he submitted a letter to the U.S. Army Reserve Personnel Center (ARPERCEN) (Retired Activities) indicating his desire to change his DD Form 1883 election, from a natural person with an insurable interest, to declining participation at that time.  He went on to state he was not married and could not show proof of financial benefit for his non-relative beneficiary.  He further indicated he reserved the right to enroll in the SBP if he married in the future.

8.  Orders 211-5, Headquarters, 94th Regional Support Command, Fort Devens, MA, dated 30 July 1998, transferred him to the Retired Reserve, in the rank of LTC, effective 29 August 1998.

9.  On 3 July 2008, he reached 60 years of age and was placed on the Army of the United States retired list.

10.  On 8 June 2009, he married his current spouse, Rxxxxxx, who is the same individual previously identified as his insurable interest.

11.  On 17 June 2010, he sent a letter to DFAS, in which he requested that his spouse be added as his SBP annuity beneficiary.  

12.  On 20 July 2010, DFAS denied his request, indicating he had 1 year from the date of his marriage to designate his spouse as his SBP annuity beneficiary, and since 1 year had elapsed since the date of his marriage, he was too late to enroll.  He was further advised that he may be able to enroll if an open season is designated by Congress in the future.

13.  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.

14.  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.

15.  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 contends his records should be corrected by adding his spouse as his SBP beneficiary.

2.  Although his enrollment letter was dated 17 June 2010, and was therefore outside the 1 year requirement for enrollment, its submission shows a desire and willingness on his part to ensure her coverage under the SBP.  It is reasonable to believe that his hearing loss may have contributed to a misunderstanding of when he had to request spouse enrollment in the SBP.

3.  In the interest of equity, it would be appropriate to grant the requested relief in this case, to correct his records to show he made a timely election of his spouse as his SBP annuity beneficiary, 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 the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20100020953, dated 24 March 2011.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant notified DFAS of his marriage, and enrolled his spouse as his SBP annuity beneficiary, within 1 year of his marriage.




      ___________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)                                         AR20100020953



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ABCMR Record of Proceedings (cont)                                         AR20110012640



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