IN THE CASE OF:
BOARD DATE: 15 October 2013
DOCKET NUMBER: AR20130003121
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 of her records to show she elected the Survivor Benefit Plan (SBP) "spouse" coverage in a timely manner after her marriage in May 2011.
2. The applicant states:
a. She called the Defense Finance and Accounting Service (DFAS) approximately 1 week after her 1-year anniversary of marriage [to elect SBP coverage for her spouse]. She was informed that she missed the window of opportunity of within 1 year of marriage. She didnt know she was eligible to change her SBP election until it was too late.
b. When she called DFAS, they told her the only way to gain eligibility for her spouse for SBP was by requesting approval from the Army Board of Correction of Military Records (ABCMR). She apologizes for the inconvenience but she didnt realize she was eligible since she was not married at the time of her retirement.
3. The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty), orders, two letters, two DD Forms 2656 (DATA for Payment of Retired Personnel), a Retiree Account Statement, a DD Form 1343 (Notification of Change in Service Members Official Records), and three certificates of marriage.
CONSIDERATION OF EVIDENCE:
1. The applicants records show she enlisted in the Regular Army on 1 February 1983. She was promoted to the rank/grade of master sergeant (MSG)/E-8 on 1 April 1997.
2. The applicant provides a DD Form 2656, dated 24 September 2002, wherein it shows she was single at that time and had one dependent daughter. This form also shows she elected SBP child only coverage. The applicant and the witness signed and dated this form on 24 September 2002 at Fort Polk, LA.
3. She was honorably retired on 30 June 2003 in the rank of MSG and placed on the Retired List on 1 July 2003. She completed 20 years and 5 months of creditable active service.
4. The applicant provides a:
* Retiree Account Statement, dated 23 January 2013, wherein it shows she has SBP child only coverage and pays SBP costs of $3.52 per month
* marriage certificate, dated 20 May 2011, wherein it shows the applicant and her current spouse were married on 20 May 2011
5. She also provides a DD Form 2656, dated 27 August 2012, wherein she indicated she wanted to change her SBP election to spouse and child coverage. She signed and dated the form, not all required entries on the form are completed and item 33 (Notary Witness) of this form is blank.
6. 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 surviving dependents. A person who is not married and has dependent children may select "children only" coverage. An election, once made, was irrevocable except in certain circumstances. Elections are made by category, not by name.
7. Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married or 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 in which that person marries or acquires that dependent child (emphasis added). There is no provision that requires a person that marries to be counseled on the 1 year timeframe in which to make an election for spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms at the time of the applicants retirement in 2003, she was single and had one dependent child. She elected SBP child only coverage and her Retiree Account Statement of January 2013 shows this is the SBP coverage she currently maintains.
2. By law, any change to add a spouse upon remarriage requires that change to be made within 1 year of the date of marriage. In this case, the applicant remarried on 20 May 2011 and contends she inquired to DFAS about changing her SBP election about 27 May 2012, which was already past the 1 year timeframe. The evidence of record does not show that she submitted a request to change her SBP election within the time required by law. Therefore, she is not entitled to the 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) AR20130003121
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20130003121
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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