IN THE CASE OF:	  

		BOARD DATE:	  10 July 2012

		DOCKET NUMBER:  AR20120001986 


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 enrollment in the Survivor Benefit Plan (SBP), spouse and child coverage.

2.  The applicant states he was married in China and unable to gain access to a military facility to enroll his dependents in the Defense Enrollment Eligibility Report System (DEERS) and in the SBP.  He was married in Shanghai, China on 1 November 2010.  He could not apply for the immigrant visas until February 2011. The visas were issued on 25 October 2011 and they travelled to the USA on 26 December 2011.  Additionally, he could not apply for DEERS until they obtained social security numbers.  In view of the extenuating circumstances, he missed the one-year mark to enroll his family in the SBP.  He previously elected SBP coverage for child only when he retired in 1992 (he was divorced at the time).  His children aged off in 2009.  He has not had SBP coverage since 24 October 2009.  

3.  The applicant provides:

* Retiree Account Statement, dated 7 April 2005
* Spouse and daughter social security cards
* Spouse and daughter Military Identification and Privilege cards
* Spouse and daughter Permanent Resident Card (Green Card)
* Spouse and daughter foreign passports
* Spouse and daughter US Immigrant Visa


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 19 December 1972 and held a medical military occupational specialty.  He served through multiple extensions or reenlistments, in a variety of stateside or overseas assignments, and he attained the rank/grade of sergeant first class (SFC)/E-7.

2.  He and Roxxx were married on 7 May 1977.  They had two children, Chxxxxx, born on 24 October 1986, and Laxxxx, born on 22 December 1982.  

3. The date and circumstances of his divorce from Roxxx are not available for review with this case.

4.  On 14 May 1992, in connection with his retirement, he completed a DA Form 4240 (data for Payment of Retired Personnel) wherein he indicated that he was single and he had dependent children.  He elected SBP coverage for "children only" based on the full amount.  

5.  He retired on 31 December 1992 and he was placed on the retired list in his retired rank/grade of SFC/E-7 on 1 January 1993.  He completed over 20 years of creditable active service.  

6.  On 1 November 2010, he married Shxxxx Waxx, a citizen of China.  She and daughter Jixx Chxx, were issued immigrant visas on 25 October 2011, social security cards on 28 December 2011, and military ID cards on 12 January 2012.  

7.  It is unclear if the applicant notified officials at the Defense Finance and Accounting Service of his marriage or requested SBP enrollment within one year of his marriage. 

8.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

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 that dependent child.

DISCUSSION AND CONCLUSIONS:

1.  The applicant married his spouse in China on 1 November 2010.  The law 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 the person marries or acquires a dependent child.

2.  Unlike other Soldiers who marry foreign nationals in Germany, Korea, or other countries where military facilities are available, the applicant in this case had extenuating circumstances in that certain events had had to occur before he could take the next step.  For example, his dependents may have needed permission from the Government of China to depart the country.  They would have needed a visa to enter the USA.  They would have needed certain proof to enroll in DEERS.  

3.  It is clear that the applicant's intent was to enroll his family members in the SBP all along but was possibly prevented from doing so by geographical and geopolitical reasons.  As such, and as a matter of equity, his records should be corrected to show he submitted an SBP enrollment document for spouse coverage to DFAS within one 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 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 the applicant filed a timely request for the SBP, spouse and child coverage, within one year of his marriage
* showing his request was timely received and processed by the appropriate DFAS office
* auditing the applicant's pay records for collection of appropriate premiums effective 1 November 2010



      _______ _   _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)                                         AR20120001986



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ABCMR Record of Proceedings (cont)                                         AR20120001986



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