IN THE CASE OF:
BOARD DATE: 2 January 2014
DOCKET NUMBER: AR20130005196
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 military records to show he elected to change his Survivor Benefit Plan (SBP) coverage from children only to spouse and children.
2. The applicant states:
* he wants his new spouse added to his SBP
* he was given bad information regarding the time frame for a new spouse to be eligible for enrollment in the SBP
* the Retirement Services Officer (RSO) at Fort Wainwright, AK, told him he could not file any sooner than 1 day prior to his first anniversary date
* he submitted his enrollment papers about a week after his first anniversary and received a letter denying his request due to it being past the anniversary date
* the RSO never said that if filed after the first anniversary his spouse could not be added
* his wife was there during this time and can verify it
* he feels this to be unjust because of the incorrect information he received
3. The applicant provides:
* denial letter from the Defense Finance and Accounting Service (DFAS)
* DD Form 256-6 (SBP Election Change Certificate)
* marriage license
CONSIDERATION OF EVIDENCE:
1. Having prior enlisted service in the Regular Army (RA), the applicant was appointed as a warrant officer in the U.S. Army Reserve on 5 June 1998. He was appointed in the RA on 11 November 2005.
2. A DD Form 2656 (Data for Payment of Retired Personnel), dated 5 October 2009, shows he elected children coverage, full retired pay. This form shows he was not married.
3. He retired on 31 March 2010 in the rank of chief warrant officer three.
4. He married on 26 November 2011.
5. He provides a DD Form 2656-6, dated 28 November 2012, which shows he elected to change his SBP coverage to spouse and children, full retired pay.
6. He provides a letter, dated 18 December 2012, from DFAS which states his attempt to add his new spouse to the SBP coverage cannot be processed because his application for the election was received more than 1 year after his marriage date.
7. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
8. 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.
9. DFAS interprets the first part of Title 10, U.S. Code, section 1448(a)(5), to mean, "
who is not married OR has no dependent child
."
DISCUSSION AND CONCLUSIONS:
1. The applicant married on 26 November 2011.
2. He contends he was told by an RSO he could not enroll his spouse in the SBP any sooner than 1 day prior to their first anniversary of marriage. The date he prepared the DD Form 2656-6, 2 days after his first anniversary, lends credence to his contention he was improperly briefed.
3. The law states:
* 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
4. It appears his spouse was not enrolled in the SBP within 1 year of their marriage because he was improperly briefed by an RSO. It would therefore be equitable to correct his records to show he elected to change his SBP election to spouse and children coverage in a timely manner.
BOARD VOTE:
____X___ ____X___ ___X__ _ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant made a written request on 1 December 2011 to change his SBP election to spouse and children coverage and the request was accepted and processed by the appropriate office in a timely manner.
_______ _ 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) AR20130005196
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20130005196
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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