IN THE CASE OF:	   

		BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130002775 


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 that his Survivor Benefit Plan (SBP) election with a spouse only election be reinstated.

2.  The applicant states, in effect, that at the time of his retirement he was not properly briefed on his SBP election options and had he been properly briefed he would have elected the spouse only option.   He has paid SBP premiums only to now find out that his election was not a valid election.  

3.  He made a disabled child election at the time because his son was born with a kidney disease called "Alports" and he was told by Army doctors that he would suffer kidney failure before his 20th birthday and he wanted to ensure he was taken care of.  However, his son is 35 years old and has never been disabled and he has been informed that his son is not an eligible recipient of the SBP.  His SBP has been terminated and he now desires to have his spouse enrolled as the eligible recipient.

4.  The applicant provides a two-page letter explaining his application, a one-page letter to the Defense Finance and Accounting Service (DFAS), correspondence from DFAS with his associated replies, and letters to and from his congressional representative.

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.  On 2 June 1987, while serving in the pay grade of E-7 at Fort Carson, Colorado, the applicant acknowledged that he had been counseled on the SBP elections available to him on retirement.  He also acknowledged that he understood his elections after retirement were permanent and irrevocable.

3.  On 2 June 1987, he made a "Dependent Children Only" election and his spouse at the time concurred with the election.  At the time of his election, he had two children:  one female and one male who were 17 and 10 years of age, respectively.   

4.  On 2 May 2012, the applicant submitted an SBP Election Change Certificate in which he requested that his election be changed to "spouse only."  He also submitted a letter to DFAS explaining that he had not been properly briefed in regard to the definition of a disabled child and that he elected to change his election to his current spouse.

5.  On 16 July 2012, DFAS dispatched a letter to the applicant explaining that because he had a spouse at the time he made his election and chose to exclude her from his SBP at the time, he was not authorized to add his current spouse.  He was advised to submit his request during the next "Open Season."

6.  The applicant’s Congressional representative contacted officials at DFAS and was informed that the applicant’s only options were to apply during the next "Open Season" or apply to the Board.  

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.  Election of beneficiaries is made by category only, not by name.  Except as provided by law, an election, once made, is irrevocable.

8.  Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provided less than maximum spouse coverage.

9.  Periodically, Congress authorizes an "Open Season" to allow members who are not utilizing the SBP to its fullest extent to make changes to their coverage.  Announcements are normally made through the Army "ECHOES," a retirement bulletin made available to retirees to keep them abreast of changes that occur in the Army and its programs.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documents have been noted; however, there is no error or injustice in his case as the applicant's election made prior to his retirement was irrevocable and he has provided no evidence to support his contention that he was not properly advised at the time.

2.  While it is understandable why the applicant desires to change his election to his current spouse because his children are no longer eligible, to do so would be contrary to Federal statutes that provide that an SBP election once made is irrevocable.  It should also be noted that SBP premiums are substantially lower for children that they are for a spouse.

3.  Therefore, it appears that the only relief available to the applicant under current statutes is to take advantage of an Open Season should Congress decide to authorize one.

4.  Accordingly, there appears to be no basis to grant the applicant's request.

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)                                         AR20130002775





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ABCMR Record of Proceedings (cont)                                         AR20130002775



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