IN THE CASE OF:
BOARD DATE: 2 July 2013
DOCKET NUMBER: AR20120021742
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 to his records to show he changed his Survivor Benefit Plan (SBP) coverage from "child only" to his current spouse within 1 year of his marriage.
2. The applicant states he did not receive proper counseling regarding the SBP benefits for his spouse. He remarried on 18 April 2009 and requested information. He was given incorrect information as to the amount of time he had to initiate these benefits for his wife. This information was requested in October 2009.
3. The applicant provides a copy of his 2009 certificate of marriage.
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 enlisted in the Regular Army on 30 June 1978.
3. His records contain a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 27 November 1991. Part V (SBP Election) shows the applicant indicated he was married and had dependent children and elected full SBP coverage for "dependent children only." In Item 17d (I Have the Following Dependent Children) of this form he listed a son with a date of birth (DOB) of XX February 1972, a son with a DOB of XX August 1979, and a son with a DOB of XX October 1984. In Part VI (Certificate) his spouse concurred with his election. He signed the form and his signature was witnessed as required on the same day.
4. He was honorably retired on 30 November 1991.
5. He provides a copy of a certificate of marriage which shows he married his current spouse on 18 April 2009.
6. On 17 June 2013, a staff member of DFAS verified, in effect, that once the applicant's youngest child became 18 years of age he was no longer the annuitant and the coverage was therefore placed in a suspended status. When the applicant married his current spouse on 18 April 2009, he had 1 year (anniversary date 18 April 2010) to add her using a DD Form 2656-6 (SBP Election Change Certificate) and he opted not to.
7. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
An election, once made, was irrevocable except in certain circumstances. Since its creation, it has been subjected to a number of substantial legislative changes.
8. Public Law 99-145, effective 1 March 1986, established remarriage options for resuming coverage and specified the change must be made prior to the first anniversary, or else previously suspended coverage resumed by default.
9. Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and/or has no dependent child upon becoming eligible to participate in the SBP/RCSBP, 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, though married, elected SBP coverage for "children only" on 27 November 1991. He was honorably retired on 30 November 1991. DFAS confirmed the applicant's account was placed in a suspended status when his youngest child became 18 years of age. He remarried on 18 April 2009.
2. Contrary to DFAS's assertion, the applicant did not have a 1-year post-marriage enrollment window. He was married at the time of his original "children-only" election, thus Title 10, U.S. Code, section 1448(a)(5), does not apply.
3. When he failed to elect "spouse-only" or "spouse and children" coverage in 1991, he irrevocably forfeited future spouse coverage except during a Congressionally-approved open enrollment period. Such open enrollment seasons are published in Army Echoes and he should monitor this bulletin periodically for an open season and seek to add his new wife at that time.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.
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 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) AR20120021742
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20120021742
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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