BOARD DATE: 9 October 2012
DOCKET NUMBER: AR20120004862
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 military records to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage.
2. The applicant states:
a. He was not married at the time of his retirement on 28 May 2004 so there was no SBP election option. He married on 20 January 2010. In early February 2010, he contacted the Defense Finance and Accounting Service (DFAS) in London, KY, to enroll in the SBP for spouse coverage. At that time he was told by the DFAS representative he could not apply for SBP until after 1 year of marriage.
b. When he contacted DFAS in June 2011, the representative told him he should have applied for the SBP earlier but to fax his written application to that office. He faxed the information on 30 June 2011 to DFAS. His request was denied by DFAS on 26 September 2011 because he did not send in his marriage certificate within 1 year of the date of his marriage.
c. The DFAS representatives he spoke with provided incorrect SBP information.
d. He tried to enroll in the SBP a few weeks after his marriage.
3. The applicant provides:
* letter to the U.S. Army Human Resources Command, Fort Knox, KY, dated 23 October 2011
* letter to DFAS, dated 30 June 2011
* orders, dated 2 February 2004
* DD Form 2656-6 (SBP Election Change Certificate)
* marriage certificate
* letter from DFAS, dated 26 September 2011
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 28 May 1944. He was transferred to the Retired Reserve on 3 November 1999 after having prior enlisted service in the U.S. Navy, Naval Reserve, and U.S. Marine Corps Reserve, and commissioned service in the Army National Guard and U.S. Army Reserve.
2. His notification of eligibility for retired pay at age 60 (20-year letter) is not available.
3. It appears that no SBP election was made because he was not married at the time.
4. He was retired and placed on the Retired List effective 28 May 2004 in the rank of captain.
5. He married on 20 January 2010.
6. He provided a DD Form 2656-6, dated 25 October 2011, which shows he elected spouse coverage, full retired pay.
7. 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.
8. 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.
9. DFAS interprets the first part of Title 10, U.S. Code, section 1448(a)(5), to mean, "
who is not married OR has no dependent child
."
DISCUSSION AND CONCLUSIONS:
1. The applicant married on 20 January 2010.
2. He contends he attempted to enroll in the SBP for spouse coverage a few weeks after his marriage, but he was told by a DFAS representative he could not apply for the SBP until after 1 year of marriage.
3. The law states:
* 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
4. It appears his spouse was not enrolled in the SBP within 1 year of their marriage because he was improperly briefed by DFAS. It would therefore be equitable to correct his records to show he elected to enroll in the SBP for spouse coverage in a timely manner.
BOARD VOTE:
___x_____ ___x_____ __x___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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 made a written request on 1 February 2010 to elect SBP
spouse coverage and the request was accepted and processed by the appropriate office in a timely manner.
__________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) AR20120004862
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ABCMR Record of Proceedings (cont) AR20120004862
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