IN THE CASE OF:	  

		BOARD DATE:  10 May 2012

		DOCKET NUMBER:  AR20110019109 


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 correction of his record to add his wife to his Survivor Benefit Plan (SBP).

2.  The applicant states:

* he was unmarried when he retired
* he married the year after he retired
* he should have received a letter from the Defense Finance and Accounting Service asking him to add his wife to his SBP within 1 year of marriage
* he never received such a document
* in the current economy, he needs to protect his wife from the uncertainties of this unstable situation
* his wife has supported him through a number of health problems and she has been his staunch advocate during 18 years of marriage
* he was under the impression that SBP enrollment was automatic once he was married

3.  The applicant provides his State of Delaware Certification of Marriage.

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 applicant’s 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 applicant’s 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 20 August 1970.

3.  On 3 December 1991, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  In this document, he indicated he was not married and he elected Option C, "Dependent children only" SBP coverage at a reduced amount of retired pay

4.  The applicant retired on 31 December 1991, by reason of length of service.  He completed 20 years and 11 days of creditable active service.

5.  The applicant married on 8 May 1993.  There is no evidence in the available record that shows he ever attempted to add his spouse to his SBP.

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 family members.

7.  In addition to enrollment opportunities at retirement, and upon newly acquiring family members, Congress periodically authorizes open season enrollment periods.  These open seasons allow retirees not participating or not fully participating to enroll in SBP.

8.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted from 1 March 1999 through 29 February 2000.  Extensive publicity was given in Army Echoes, a newsletter to keep Army Retired Soldiers and family members abreast of their rights and privileges, inform them of developments in the modern Army, and to inspire goodwill and a desire to support the Army in their civilian communities.  The first bulletin was published in March 1956.

9.  The National Defense Authorization Act (NDAA) for Fiscal Year 2005 established an Open Season to be conducted from 1 October 2005 through
30 September 2006.  Extensive publicity was given in Army Echoes.
10.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married or 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 contentions have been noted and his supporting evidence was considered.

2.  By law, a member who is not married upon obtaining eligibility to participate in the SBP may elect to participate in the SBP to cover a newly acquired spouse.  Such an election must be writing, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries.

3.  The evidence of record confirms that at the time the applicant completed his SBP election in 1991, he was not married.  He elected the "Dependent children only" option.  When his children were no longer eligible to receive his SBP annuity, he was no longer required to pay SBP premiums.

4.  The applicant had three opportunities to add his spouse to his SBP and there is no evidence in the available record and he did not provide any evidence that shows he attempted to do so.  He had up to 1 year after he married and two open seasons, both of which were given extensive publicity in Army Echoes.

5.  The applicant has shown no evidence of error or injustice in his case.  The fact that he now desires to add his spouse to his SBP is insufficient in and of itself to warrant granting the applicant's requested relief.

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)                                         AR20110019109



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ABCMR Record of Proceedings (cont)                                         AR20110019109



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