IN THE CASE OF:	  

		BOARD DATE:	    23 July 2013

		DOCKET NUMBER:  AR20120022514


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 Plan Benefit (SBP) election be changed from "children only" coverage to "spouse and children" coverage.

2.  The applicant states:

* he is requesting an exception to policy to change his SBP election
* he failed to make an SBP election within 1 year of his current marriage, which occurred on 15 June 2011, because he lacked knowledge about SBP rules – he is not sure if his Army Career and Alumni Program (ACAP) training covered this topic well enough
* he did not learn the applicable SBP rules until he attended a local Retiree Appreciation Day event
* he now submits his application to the Board for consideration – he hopes the Board will grant his request to enroll his spouse in the SBP
* he could wait for the next open enrollment season [called Open Seasons], but he was told Open Seasons occur infrequently and he feels this benefit is too important to leave to chance

3.  The applicant provides his State of Florida Marriage Record and a letter from the Defense Finance and Accounting Service (DFAS), Retired and Annuitant Pay, dated 14 November 2012.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 October 1983.  He executed several reenlistments, served in a variety of assignments, and he attained the rank/grade of staff sergeant (SSG)/E-6.

2.  On 15 September 2003, in anticipation of his upcoming retirement, he completed a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated he was single and had two dependent children.  He elected SBP coverage for children only, based on the full amount of his retired pay.  He and a witness, an SBP counselor, authenticated this form by placing their signatures in the appropriate place.

3.  On 31 October 2003, he was retired from the Army by reason of sufficient service for retirement and on 1 November 2003 he was placed on the Retired List in the rank/grade of SSG/E-6.

4.  On 15 June 2011, he married his current spouse, Marta.  There is no indication he notified the appropriate officials at DFAS about his marriage or that he requested a change of SBP coverage, from children only to spouse and children, within 1 year of his marriage.

5.  He provides a letter from DFAS, Retired and Annuitant Pay, dated
14 November 2012, that shows DFAS denied his previous request to change his SBP coverage.  In its letter, DFAS advised the applicant to wait for the next Open Season period, or apply to the Army Board for Correction of Military Records (ABCMR) for relief.

6.  Public Law 92-425 (the SBP), enacted 21 September 1972, provides that military members on active duty may elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  An election, once made, is irrevocable except in certain circumstances.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

7.  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.  The 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...."

8.  Army Echoes (the Army bulletin provided to retirees to keep them abreast of their rights and privileges and to inform them of developments within the Army), consistently contains a reminder to retirees, informing them that they are responsible for updating their retired pay file within 1 year of certain life-changing events; specifically, if they marry, remarry, have a child, are widowed or divorced and need to make or update an SBP election.  Issue Numbers 1 of 2011 (May – August 2011) and 1 and 2 of 2012 (January – April and May – August 2012) each highlighted this reminder.  Army Echoes is mailed to each retiree and is available online at http://www.armyg1.army.mil/rso/echoes_issues.asp.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant, upon his retirement, completed a DD Form 2656, wherein he elected "children only" SBP coverage.  He did not have a spouse at the time.

2.  He and Marta were married on 15 June 2011.  He became eligible to make a change in SBP election from "children only" coverage to "spouse and children" coverage within 1 year of his marriage (15 June 2012).  The law permitted (but did not mandate) him to add his spouse within 1 year of their marriage.  He did not do so.

3.  When he failed to change his SBP coverage to add his spouse within 1 year of their marriage, he irrevocably forfeited future spouse coverage except during a Congressionally-approved open enrollment period.

4.  Although he believes he may not have been properly counseled 8 years earlier, he also concedes that he failed to look into the matter when he remarried.
Further, he would have received the Army Echoes bulletin on numerous occasions since his retirement that reminded retirees they are responsible for updating their retired pay file within 1 year of certain life-changing events; specifically, if they marry, remarry, have a child, are widowed or divorced and need to make or update an SBP election.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

6.  For the applicant's information, Congress has authorized open enrollment periods for the SBP in the past.  However, there is no way of knowing whether another open enrollment period will be established in the future.  In the event that this does occur Army Echoes will more than likely announce the beginning of the SBP open enrollment period and he may be able to change his election at that time.

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)                                         AR20110011249



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ABCMR Record of Proceedings (cont)                                         AR20120022514



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