IN THE CASE OF: 

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120009333 


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 record to show he enrolled his spouse in the Survivor Benefit Plan (SBP) in a timely manner and correction of his daughter's date of birth (DOB) that is recorded in his finance record.

2.  The applicant states when he and his wife were married he enrolled her in the Defense Enrollment Eligibility Reporting System (DEERS).  He was unaware of the 1-year limitation on adding his spouse to the SBP.  At the time, he was told he had to wait for an "open enrollment" period; however, he found out later that was not correct.  He adds 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.  When he telephoned DFAS, he learned his application had been filed without further action.  At that time he also learned that the DOB for his youngest child, Caitlin, is incorrectly recorded in his finance record as 2 March 1998 vice 1992.  He requests an exception to the 1-year SBP policy.

3.  The applicant provides a copy of a:

* State of Rhode Island, Marriage Certificate, issued on 6 May 2009
* United States of America, Department of State, Consular Report of Birth Abroad, that shows his daughter, Caitlin, was born on 2 March 1992

CONSIDERATION OF EVIDENCE:

1.  The applicant requested correction of his finance record to show his daughter, Caitlin, was born on 2 March 1992 instead of 2 March 1998.  On 6 November 2012, coordination was made with DFAS concerning his daughter's incorrect DOB.  The DFAS official noted the branch of service incorrectly input the youngest child's DOB at retirement and that this error would be corrected in the applicant's finance record.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

2.  The applicant enlisted in the Regular Army on 7 July 1977.  He attained the rank/grade of master sergeant (MSG)/E-8 on 1 October 1996.

3.  A DD Form 2656 (Data for Payment of Retired Personnel), completed by the applicant on 20 August 1998, shows he indicated his marital status was "single" and that he had three dependent children.  Section IX (SBP Election - See your SBP counselor before making an election) shows in:

	a.  item 26 (Beneficiary Categories) he placed an "X" in block c (I elect coverage for child(ren) only).

	b.  item 27 (Level of Coverage) he placed an "X" in block a (I elect coverage to be based on full gross pay without supplemental SBP).

	c.  item 32a (Signature of Member) he affixed his signature on the document.

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was retired by reason of sufficient service for retirement on
30 September 1998 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  He completed 21 years, 2 months, and 25 days of creditable active service.

5.  On 25 April 2009, the applicant married V------ A—K------.

6.  During the processing of this case, on 6 November 2012 via email, the applicant was advised that the ABCMR does not have access to or jurisdiction in correcting data in DEERS.  He was asked to confirm if his youngest daughter's DOB is correct in DEERS.  He did not respond.

7.  Additionally, on 6 November 2012, an official at DFAS confirmed there was no record that the applicant requested enrollment in the SBP with spouse coverage within 1 year of his date of marriage.

8.  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.
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.

10.  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.  Beginning before April 2007, every subsequent issue contains the warning or a similarly-worded warning, "Remember:  You are responsible for updating your retired pay file information at DFAS-CL (use mailing address below) within 1 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 record should be corrected to show he enrolled his spouse in the SBP in a timely manner because when he enrolled her in DEERS he was told that he had to wait for an SBP "open enrollment" period.  He also requests correction of his youngest daughter's DOB in his finance record.

2.  Records show that during the applicant's retirement processing in 1998 he completed an application for retired pay.  He indicated he was single with three dependent children and he elected to participate in the SBP with children only coverage.

3.  The applicant retired on 30 September 1998.  He married on 25 April 2009 and enrolled his spouse in DEERS.

4.  The sincerity of the applicant's contention is not in question; however, there is no independent evidence to show he was advised that he had to wait for an SBP "open enrollment" period to enroll his spouse in the SBP.  Further, Army Echoes warns retirees that it is their responsibility to notify DFAS within 1 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 with spouse coverage.  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 the foregoing, the applicant is not entitled to correction of his record to show he enrolled in the SBP with spouse coverage.

8.  The applicant is advised that, on occasion, the U.S. Congress enacts into law 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.  Therefore, 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 the 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 pertaining to SBP spouse 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)                                         AR20120009333



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ABCMR Record of Proceedings (cont)                                         AR20120009333



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