IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20120001439 


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 records to show that he enrolled his spouse in the Survivor Benefit Plan (SBP) in a timely manner.

2.  The applicant states that when he and his wife were married he enrolled her in the Defense Enrollment Eligibility Reporting System (DEERS).  At the time, he was told that "SBP was automatic"; however, he found out later that was not the case.  He adds that he submitted an application and a copy of his marriage certificate to the Defense Finance and Accounting Service (DFAS) to enroll his spouse in the SBP; but it was not accepted.  He requests an exception to the policy.

3.  The applicant provides a copy of a State of Texas Marriage Certificate that shows he married C---- L-- H---- on 22 April 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 21 November 1973.  He attained the rank of sergeant first class/pay grade E-7 on 1 January 1985.

2.  A DD Form 2656 (Data for Payment of Retired Personnel), completed by the applicant on 1 February 1995, shows that he indicated with the entry "N/A" that he had no spouse or dependent children.  It also shows in Section VII (SBP 


Election - See your SBP counselor before making an election), item 28 (Beneficiary Categories), that he placed an "X" in box g (I elect not to participate in SBP.  I do not have eligible dependents under the plan).  The applicant also placed his signature on the document.

3.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably retired from active duty on 30 April 1995 and transferred to the U.S. Army Reserve Control Group (Retired).  

4.  In connection with the processing of this case, coordination was made with DFAS.  A DFAS official confirmed there was no record that the applicant requested enrollment in the SBP with spouse coverage within 1 year of the date of marriage.  However, the applicant submitted a letter to DFAS with his marriage certificate on 8 October 2011. 

5.  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.  Retiring members and spouses were to be informed of the SBP options and effects.

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.

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.  Every issue, beginning before April 2007, contains the warning or a similarly-worded warning, “Remember:  You are responsible for updating your retired pay file information at DFAS-CL (Use KY mailing address below) within one year of the event if you marry, remarry, have a child, are widowed or divorced and need to make or update a Survivor Benefit Plan (SBP) election.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he enrolled his spouse in the SBP in a timely manner because he enrolled her in DEERS he was told that "SBP was automatic."

2.  Records show that during the applicant's retirement processing in 1995 he completed an application for retired pay.  He indicated he had no dependents and elected not to participate in SBP.

3.  The applicant retired from active duty on 30 April 1995.  He was married on 22 April 2007.

4.  The sincerity of the applicant's contention is not in question.  However, there is no independent evidence to show he was advised that his wife was automatically enrolled in SBP when he enrolled her in DEERS.  Further, Army Echoes warns retirees that it is their responsibility to notify DFAS within one year of marriage if they need to make an SBP election.

5.  There is no evidence the applicant submitted an application to enroll in SBP with spouse coverage within 1 year of the date of their marriage.

6.  The governing law is clear in that a person who is not married, but who later marries, 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.  The applicant failed to make such an election within 1 year after the date on which
he was married.

7.  Regrettably, in view of all of the foregoing, the applicant is not entitled to correction of his records to show he enrolled in the SBP with spouse only coverage.

8.  The applicant is advised that, on occasion, the U.S. Congress enacts into legislation an SBP Open Season.  For example, Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  It required the retiree to pay monthly premiums starting on the date of enrollment and a buy-in premium covering all costs that would have been paid for the election if it had been made at the first opportunity to do so.  Thus, the applicant is encouraged to monitor military media and/or websites in the event an SBP Open Season is enacted into law in the future.

9.  The applicant is also advised that he may wish to contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding SBP.  A listing of RSOs by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp.

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)                                         AR20120001439



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ABCMR Record of Proceedings (cont)                                         AR20120001439



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