BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120002256 


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, correction of his military records to show he enrolled in the Survivor Benefit Plan (SBP) and elected spouse only coverage within one year of his marriage.

2.  The applicant states upon his remarriage on 22 January 2010, he went to the nearest Defense Eligibility Enrollment Reporting System (DEERS) office to obtain an identification card for his new spouse and update his records.  He was told that Defense Finance and Accounting Service (DFAS) records would also be updated.  Because paper copies of his retirement leave and earning statement (LES) were only provided quarterly, he did not notice until January 2011 that his former spouse was listed as the beneficiary.  On February 2011, he addressed this issue with DFAS and after much paperwork back and forth, he was notified in November 2011 that his new wife did not qualify for the SBP.

3.  The applicant provides:

* request for leave
* MyPay printout
* Retiree Account Statements (2)
* Marriage License (Current Spouse)
* DD Form 2656 (Data for Payment of Retired Personnel)
* DFAS correspondence (fax header sheets with associated supporting documents)



CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 8 October 1987.

2.  The applicant married his former spouse on 4 July 1991.

3.  On 24 November 2008, he elected "spouse and child" SBP coverage in anticipation of retiring.

4.  He divorced his former spouse on 17 April 2009 and he retired on 1 June 2009.  He married his current spouse on 22 January 2010.

5.  According to DFAS officials the applicant retired on 1 June 2009 but was divorced on 17 April 2009; therefore, he was not married at the time of his retirement.  Subsequent to his retirement he failed to make an SBP election for his new spouse within one year and he was properly informed that an open season allotment would be his only option if he wanted to add his current spouse.

6.  He submitted correspondence which shows:

	a.  On 16 February 2011, he requested his SBP beneficiary be changed to his new spouse.

	b.  On 16 May 2011, DFAS requested a complete copy (all 10 pages) of his final divorce decree.  A fax cover sheet shows he complied with this request on 7 June 2011.

	c.  On 14 November 2011, DFAS refunded all the SBP premiums paid since his retirement in the amount of $4605.72.  This memorandum also informed him that he would have to wait until an "open season" to make an SBP election to add his new spouse.

7.  Public Law 92-425, enacted on 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.

8.  Public Law 94-496, enacted 14 October 1976, established a waiting period of 1 year following post-retirement marriage.  The legislative history of the SBP shows that Congress's purpose in requiring a 1-year waiting period was to prevent sham marriages and to prevent spouses who become widows/widowers of SBP participants only by virtue of a short-term marriage after retirement from automatically receiving an annuity.
9.  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 in which that person marries or acquires that dependent child.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a change of his SBP coverage to show he elected "spouse only" coverage within 1 year of marriage.

2.  Public law requires that a person who is not married upon becoming eligible to participate in SBP 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.

3.  He contends he was told that updating his DEERS record would update his DFAS pay record.  The evidence provided by the applicant shows on that on 
16 February 2011 he requested to change/add his new spouse as his SBP beneficiary which was approximately 25 days beyond the 1-year period to make such an election.

4.  It is reasonable to presume that he believed that updating his DEERS record would update all his DFAS records to include his SBP election and it is also reasonable to presume that this misunderstanding delayed him from taking the appropriate action within the time required.  Further, he honestly recorded his marital status as of the date he completed his DD Form 2656 and although his status changed SBP premiums continued to be deducted from his pay; thus he had no reason to suspect there was a problem with his spouse coverage.

5.  As a matter of equity, it would be appropriate to correct his records to show he added spouse coverage and to collect all additional premiums from the applicant based on the date of marriage, 22 January 2010, for such coverage.

6.  However, because he originally also had child coverage, it would be appropriate to correct his records to show he now has spouse and child coverage rather than spouse only coverage.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x___  __x_____  __x______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing he elected to add spouse SBP coverage on 22 January 2010 and

	b.  having the Defense and Finance Accounting Service collect all premiums due.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to spouse only SBP coverage.



      ___________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)                                         AR20120002256





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ABCMR Record of Proceedings (cont)                                         AR20120002256



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