IN THE CASE OF:
BOARD DATE: 5 April 2012
DOCKET NUMBER: AR20110017909
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 record be corrected to show he elected Survivor Benefit Plan (SBP) coverage for his spouse effective within one year of their marriage.
2. He states he was recently informed he had only one year from the date of his marriage to elect SBP coverage. He adds if he had been notified of this requirement, he would have done so at the time of his marriage.
3. He provides the following:
* Self-authored statement
* Marriage certificate
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter to the Defense Finance and Accounting Service (DFAS), dated 23 June 2011, with DFAS response, dated 17 August 2011
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 22 April 1981 and was retired on 30 April 2001. He was credited with 20 years and 9 days of active duty service.
3. His certificate of marriage shows he married his current spouse on 2 May 2003.
4. The Total Army Personnel Database - Reserve lists his marital status as "single" and the number of dependents as "0."
5. In a letter to DFAS, dated 23 June 2011, he requested that his spouse be added as beneficiary to his monthly retirement check under the SBP. DFAS responded by stating that since he did not elect coverage within one year of his marriage, spouse coverage could not be implemented at this time.
6. Public Law 92-425, the SBP, enacted 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. Changes in SBP options are not authorized except in specific instances as authorized by law.
7. Army Echoes is the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. The September 2003 (and subsequent issues) stated, Remember: You are responsible for updating your retired pay file at DFAS-CL (address below) within one year of the event if you marry, remarry, have a child, are widowed or divorce [sic] and need to make or update a Survivor Benefit Plan (SBP) election.
8. Public 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006. This information was published in Army Echoes.
9. 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 dependent children.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he was unaware of the requirement to make an SBP election within one year of the date of marriage is not sufficiently mitigating to warrant granting the requested relief. Such information was provided to all retirees in Army Echoes.
2. The evidence of record shows he did not attempt to change his SBP coverage until 23 June 2011, more than 8 years after his marriage to his current spouse.
3. The applicant is advised that he may make a change to his SBP election during the next Open Season, as periodically authorized by Congress. Open Seasons are announced in Army Echoes, which he should currently be receiving, and/or he can obtain additional information on SBP Open Seasons from the Retirement and Annuitant Pay Section of the DFAS website http://www.dod.mil/dfas/ money/ retired/ index.htm.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X ___ ___X____ ___X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ _ 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) AR20110017909
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110017909
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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