BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130003567 


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 reinstatement of Survivor Benefit Plan (SBP) benefits.

2.  The applicant states he had previously elected not to participate in the SBP but changed his mind once he discussed the application with his spouse.  Before he and his spouse at the time went in to sign and make the necessary correction, the retirement branch at Fort Stewart, GA had already mailed his documents.  His spouse did not sign the block to refuse the SBP payment option and they had changed their mind before his retirement, but the documents were mailed to the Defense Finance and Accounting Service (DFAS) without his or his spouse's consent.  He has since remarried and wants to be able to provide SBP benefits for his current spouse.

3.  The applicant provides no additional evidence in support of his application.

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 following documents were received from DFAS:

	a.  His orders, dated 19 September 1998, for retirement effective 31 May 1999.

	b.  A DD Form 2656 (Data for Payment of Retired Personnel), signed by the applicant on 22 October 1998.  He indicated in:

* item 14 (Marital Status) that he was married
* item 27 (List Your Dependent Child (ren)) that he had a stepdaughter 	and a stepson
* item 26g that he elected not to participate in the SBP
* Item 35 (Signature of Spouse) is blank

	c.  An SBP Spouse Concurrence Statement, dated 26 October 1998, which indicates the applicant's spouse concurred with his SBP election for no survivor coverage for spouse or children.  She signed the statement on 2 November 1998.

3.  On 31 May 1999, he was retired and placed on the Retired List the following day.  He completed 20 years and 29 days of active service.

4.  Public Law (PL) 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.

5.  PL 99-145, enacted 8 November 1985, effective 1 March 1986, stated that spousal concurrence is required when a retiring member elects not to participate in the SBP or elects less than maximum spouse coverage.

6.  PL 108-375, enacted 28 October 2004, established an open enrollment period from 1 October 2005 to 30 September 2006 for members who on the day before the first day of the open enrollment period were entitled to retired pay. 

7.  Title 10, U. S. Code, section 1448(a)(4)(A) provides that an election under the SBP is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his spouse at the time did not sign the form concurring with his election not to participate in the SBP.  

2.  His spouse did not sign the DD Form 2656.  However, she did complete and sign an SBP Spouse Concurrence Statement concurring with his election not to participate in the SBP.  Therefore, there is no error or injustice in his election not to participate in the SBP.

3.  The applicant contends the documents were sent to DFAS without his or his spouse's consent.  He does not indicate exactly when his retirement documents were forwarded to DFAS.  However, documents for retirement are routinely forwarded to DFAS in a timely manner in order to ensure a retiree receives his or her first retirement check on time.  Once all the documents are completed for his retirement, his permission or consent is not required to forward them to DFAS.

4.  An election under the SBP is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay.  If he and his spouse changed their minds about his SBP election, he could have changed his election up until 30 May 1999.  There is no evidence that he attempted to change his election.  Therefore, his election to decline participation in the SBP is irrevocable.

5.  In view of the above, there is no basis for granting relief in this case.

6.  The applicant did not provide the date or circumstances of the termination of his first marriage or the date of marriage for his current spouse.  The only way he could elect to participate in the SBP for his current spouse (or his then spouse, if still married to her at the time) would have been/would be during an open enrollment period.  The last open enrollment period was from 1 October 2005 to 30 September 2006.

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)                                         AR20130003567



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ABCMR Record of Proceedings (cont)                                         AR20130003567



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