IN THE CASE OF:	  

		BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120008424 


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 enrolled in the Survivor Benefit Plan (SBP) within one year of marriage and elected spouse coverage.

2.  The applicant states he was single at the time of his retirement; but now he is married and he would like to enroll his wife in the SBP.  He contends that they presently have enough to get by but his death would be devastating to his wife's welfare.  The SBP could be the difference in whether or not his wife can remain in the house.  He also states that he was single at the time and he did not pay attention to the paragraph at the bottom of the retirement letter.  He is asking that the Board not penalize his wife due to his neglect.  

3.  The applicant provides the first page of an SBP Election Change Certificate, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 29 March 1962, Defense Finance and Accounting Service (DFAS) Summary of Retired Pay Account, Certificate of Marriage, and a DFAS Designation of Beneficiary Information form.

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's Summary of Retired Pay Account, dated 20 January 2000, indicates that he retired on 15 January 2000 in the rank and grade of master sergeant/E-8.  His Summary of Retired Pay Account contains the following statement "Because you indicated that you currently have no eligible beneficiaries, no specific SBP coverage has been established.  Should you acquire beneficiaries (spouse/children) in the future, advise this center immediately so that appropriate SBP coverage can be established in your retired pay account."

3.  The applicant married on 14 July 2003.  There is no evidence in the available record that shows he ever attempted to add his spouse to the SBP.

4.  He provides the first page of an SBP Election Change Certificate in which he is requesting a change in coverage based on marriage and a DFAS Designation of Beneficiary Information form, dated 12 April 2012, that indicates he designated his spouse as his beneficiary.  

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 family members.

6.  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.

7.  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 through Army Echoes, 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.


8.  Title 10, U.S. Code, section 1448(a)(5) provides 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 one year after the date in which that person marries.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his military records to show he enrolled in the SBP within one year of his marriage has been carefully 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 in writing, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries.

3.  The applicant had up to one year after he married to add his spouse to the SBP and a second opportunity to add his spouse to his SBP during the 2005-2006 open season and there is no evidence in the available records that shows he attempted to do so.  

4.  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 to warrant granting the requested relief.

5.  The applicant is advised that if Congress authorizes another open season, it will be publicized in the Army Echoes.

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)                                         AR20120008424



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ABCMR Record of Proceedings (cont)                                         AR20120008424



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