IN THE CASE OF: 

		BOARD DATE:  30 APRIL 2013

		DOCKET NUMBER:  AR20120018320 


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, that his Survivor Benefit Plan (SBP) coverage be changed from "Child Only" to "Spouse Only," following his marriage to his current spouse in a timely manner.

2.  He states, in effect, prior to marriage to his current spouse he went to Retirement Services and he was told he had to wait until he had been married for 1 year to sign his wife up for survivor benefits.  He waited 1 year as he was told and he went in to complete the paperwork changing his SBP election to include his current spouse and the paperwork was lost.  He then called in and was told they had no record of it.  On 19 September 2012, he called the Defense Finance and Accounting Service (DFAS) and he was told he was ineligible to sign his wife up.  DFAS told him that he was given the wrong information.  He had to sign his wife up right after he got married and that he had a 1 year grace period before the benefits kicked in.  Now his wife is unable to get his survivor annuity due to the error of Fort Drum Retirement Services.

3.  He provides:

* two divorce decrees
* DD Form 2656 (Data for Payment of Retired Personnel)
* DD Forms 2656-6 (SBP Election Change Certificate), dated 10 May 2012 and 27 July 2012


CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he retired from the Regular Army on 31 December 2010, in the rank/grade of sergeant first class/E-7, after completing more than 20 years of active service.

2.  He submits a copy of a divorce decree showing he was divorced on 15 April 2008.

3.  On 14 September 2010, he elected child only SBP coverage, based on his full gross pay for a child born on 17 April 2000.

4.  He submits a copy of a DD Form 2656-6 showing his SBP coverage at the time of completion of the form was child only.  He marked he was requesting a change in coverage based on marriage.  The form shows he elected spouse only coverage based on his full retired pay.  The form shows it was signed by him and a witness on 10 May 2012.  It shows his spouse's name and a date of marriage of 2 May 2011.

5.  He submits a second DD Form 2656-6 showing his SBP coverage at the time of completion of the form was child only.  He marked he was requesting a change in coverage based on remarriage.  The form shows he elected spouse only coverage based on his full retired pay.  The form shows it was signed by him on 27 July 2012.  It is void of a witness signature.  It shows his spouse's name and a date of marriage as 2 May 2011.  It is noted that he did not submit a copy of a marriage license/certificate.

6.  Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP.  It provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  An election, once made, is permanent and irrevocable except as provided for by law.

7.  Issues of Army Echoes (the Army bulletin published and provided to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army), consistently contain a reminder to retirees that they are responsible for updating their retired pay file, using the Kentucky mailing address provided, within 1 year of the event if they marry, remarry, have a child, are widowed or divorced and need to make or update a SBP election.  The May - August 2011 edition (within the 1 year anniversary of his marriage) highlighted this reminder.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was not married when he elected child only SBP coverage based on full gross retired pay on 14 September 2010.

2.  Following marriage to his current spouse on 2 May 2011, he had a 1 year period to make an election to add his spouse as an SBP beneficiary.  There is no evidence to confirm he submitted an SBP election during that period or that DFAS received such an election.

3.  He contends he was not properly counseled, in effect, causing him to not make an election to enroll his spouse in the SBP within 1 year of their marriage.  However, he would have received the Army Echoes bulletin which reminded retirees if they married or remarried and needed to make an SBP election they were responsible for contacting the DFAS.  Retired Pay Newsletters also provided these reminders.  He also could have had any questions concerning the SBP clarified by calling a Retirement Services Officer or DFAS.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.  Congress has authorized open enrollment periods for the SBP in the past.  There is no way of knowing whether another open enrollment period will be established in the future; however, in the event that this does occur Army Echoes may announce the beginning of the SBP open enrollment period and he may be able to change his election at that time.

BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board believed the applicant’s contention that he was improperly counseled on when he should add his spouse to his SBP.  He married on 2 May 2011, and on 10 May 2012 only 8 days after his first anniversary, he attempted to enroll her in his SBP.  That short period of time after his first anniversary lends credence to his contention.

2.  As a result, the Board determined that the evidence presented was sufficient to warrant a recommendation for relief and recommends that all Department of the Army records of the individual concerned be corrected by showing he elected to add spouse coverage to his SBP 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)                                         AR20120018320



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ABCMR Record of Proceedings (cont)                                         AR20120018320



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