IN THE CASE OF:
BOARD DATE: 10 September 2013
DOCKET NUMBER: AR20130002030
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, enrollment in the Survivor Benefit Plan (SBP) for his spouse and step-children.
2. The applicant states:
a. He was given incorrect information by a clerk at the Fort Bragg, North Carolina Soldier Support Center who told him that in order for him to add his spouse and step-children as SBP beneficiaries they were required to have Social Security numbers. His spouse and step-children arrived in the U.S. through a Fiancée Visa on 13 June 2011. As of 10 January 2013, the U.S. Customs and Immigration Service had not completed their case.
b. When he returned to the Fort Bragg Soldier Support Center to add his newborn son to his SBP he was informed that the information previously given to him was in error. They explained that he had 1 year from the date of his marriage to enroll his spouse and step-children as SBP beneficiaries.
c. In view of the fact he was given incorrect information and missed the
1-year time limit to add his spouse and step-children to his SBP he requests the Board correct his records accordingly. Not doing so would be an injustice to his family who has been exceptionally supportive of him as a 100 percent disabled veteran.
3. The applicant provides:
* a State of Connecticut License and Certificate of Marriage
* his spouse's Certificate of Live Birth
* Certificates of Live Birth for two step-children
CONSIDERATION OF EVIDENCE:
1. On 24 December 2007, the applicant was retired by reason of temporary disability and placed on the Temporary Disability Retired List (TDRL) on the following day.
2. On 15 October 2010, the applicant was removed from the TDRL and placed on the Retired List by reason of permanent disability with a 60 percent disability rating in the rank/grade of staff sergeant (SSG)/E-6. He completed 16 years, 5 months, and 3 days of creditable active service. His marital status at the time of his retirement is unknown and he did not provide a copy of his DD Form 2656 (Data for Payment of Retired Personnel). However, his DD Form 93 (Record of Emergency Data), dated 2 June 2004, indicates one of his three daughters from a previous marriage was a minor at the time of his retirement.
3. He provides a License and Certificate of Marriage showing he married his current spouse, Carolina, in Connecticut on 18 June 2011 and that she was born in New York. He also provides Certificate of Live Birth showing his spouse has two children who were born in the Philippines.
4. 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.
5. 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.
6. Public Law 97-35, enacted on 12 August 1981, established an open enrollment season for SBP from 1 October 1981 - 30 September 1982.
Public 101-189, enacted on 29 November 1989, established an open enrollment season from 1 October 1991 - 30 September 1992 (amended to 1 April 1992 -
31 March 1993). Public Law 108-375, enacted on 28 October 2004, established an open enrollment season from 1 October 2005 - 30 September 2006. All of these open enrollment seasons were extensively publicized in Army Echoes to ensure all retirees were informed of their existence.
DISCUSSION AND CONCLUSIONS:
1. The applicant and his current spouse were married on 18 June 2011. He was authorized up to 1 year from the date of marriage to enroll his spouse and step-children in the SBP. He asserts he missed the 1-year deadline due to incorrect information from a clerk at the Fort Bragg Soldier Support Center.
2. He did not provide any independent evidence to support his assertion that he was given incorrect information concerning the requirements to enroll his spouse and step-children as his SBP beneficiaries when he visited the Fort Bragg Soldier Support Center. Further, regardless of the advice he received at Fort Bragg, because he had a minor child whom he apparently did not chose to enroll in the SBP at the time he was placed on the TDRL, he was not authorized to add his newly acquired dependents.
3. Periodically, Congress enacts laws that establish open enrollment seasons during which certain rules regarding enrollment or disenrollment are announced. Open seasons generally permit retirees who are not participating to enroll and those not fully participating to increase the level of coverage. A buy-in cost, typically capturing premiums back to the point a retiree was first eligible for coverage, is associated with open season enrollment. The last open enrollment season was October 2005 through September 2006. It is unknown if and when the next open season may be offered.
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) AR20120004861
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20130002030
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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