IN THE CASE OF:
BOARD DATE: 5 September 2013
DOCKET NUMBER: AR20130001243
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 records to add his wife as a beneficiary under the Survivor Benefit Plan (SBP).
2. The applicant states he was not properly advised of the elections for the SBP. He thought the SBP was an insurance policy for which his son would get half and his wife the other half. He requests an exception to policy to allow for SBP entitlement for his wife of 35 years.
3. The applicant provides no supporting documentation.
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 served on continuous active duty for 20 years and 25 days, with voluntarily retirement effective 30 June 1995.
3. On 21 February 1995, he completed a DD Form 2656 (Data for Payment of Retired Personnel). It shows in:
* item 22 (Spouse Name) the entry S----, N---- J.
* item 27 (List your dependent child(ren)) the entry:
* S----, K----- E.; Daughter
* S----. J------- A.; Daughter
* S----, A---- J.; Son
* item 29 (Beneficiary Category) an "X" at "c. I elect coverage for children only. (I do have a spouse)" Other choices included spouse only or spouse and children coverage
* item 30 (Level of Coverage) an "X" at "a. I elect coverage to be based on full gross pay
* Section VIII Survivor Benefits Spousal Concurrence, his spouse identified in item 22 concurred with the applicant's SBP election and she signed of her own free will on 21 February 1995
* Section IX Certification, this form was witnessed by the Retirement Services Officer on 21 February 1995
4. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to their surviving dependents. Surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or as authorized by law.
5. Title, 10 U.S. Code, Section 1448, requires that an otherwise eligible spouse concur if the member declined to elect SBP coverage, elected less than maximum coverage, or elected child only coverage. Spousal concurrence must have been obtained and dated on or after the date of the member's election, but before the retirement/transfer date.
6. 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 two years from the effective date of election for beneficiaries to be
eligible for an annuity. The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so. Extensive publicity was given in 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant retired in 1995. At that time he listed his wife and three children as dependents. Both he and his wife signed the SBP election for children only coverage.
2. There is no evidence of record and the applicant did not provide any evidence that shows he and his wife were not properly advised of what SBP was or what the effect of the different coverage options were. His contention that he thought the SBP would be split between his son and his wife is not reasonable considering several options were available, including spouse AND children, and he elected children only coverage.
3. There is no provision in the existing law or regulations that would allow for a change in SBP coverage to add his spouse at this time. He should read Army Echoes to learn if and when Congress declares another Open Season.
4. In view of the foregoing, there is no 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 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) AR20130001243
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ABCMR Record of Proceedings (cont) AR20130001243
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