BOARD DATE: 1 May 2014
DOCKET NUMBER: AR20130013243
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 be changed from spouse only to spouse and children.
2. The applicant states, in effect, that his son was born on 19 July 2010 and on 29 June 2011, he submitted a DD Form 2656-6 (SBP Election Change Certificate) to the Retirement Services Officer (RSO) along with a copy of his sons birth certificate changing his election from spouse to spouse and children. The SBP counselor signed and dated the request and faxed it to the Defense Finance and Accounting Service (DFAS) and told him he was good to go. He received a letter from DFAS on 28 October 2011 requesting a copy of his sons birth certificate and he faxed them a copy on 17 November 2011. On
19 November 2011, he received a letter from DFAS notifying him that his request was rejected because the birth certificate was received after the 1-year deadline as he was credited with sending the birth certificate in November 2011. He turned all of the documents in to the RSO because he did not want anything to go wrong. His request should have been approved.
3. The applicant provides copies of his DD Form 2656-6, his sons birth certificate, and two letters from DFAS.
CONSIDERATION OF EVIDENCE:
1. The applicant was promoted to the rank of lieutenant colonel on 1 April 2008 and on 31 March 2009 he was honorably retired and was transferred to the Retired List in the rank of major on 1 April 2009. He had served 21+ years of active service and was married with no children at the time of his retirement. He made a spouse only SBP election at the time of his retirement. On 19 July 2010, the applicants son was born.
2. The DD Form 2656-6 submitted by the applicant with his application is dated 29 June 2011 and is witnessed by the RSO at Fort Meade, Maryland.
3. On 28 October 2011, DFAS dispatched a letter to the applicant requesting a copy of his sons birth certificate. On 13 December 2011, DFAS dispatched another letter denying the applicants request because the birth certificate was not received until 17 November 2011.
4. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his SBP election should be changed from spouse only to spouse and children has been noted and appears to have merit.
2. The applicant submitted his change of election through the nearest RSO within 1-year of his sons birth and it is reasonable to expect that the RSO would take the steps necessary to make the requested change.
3. It also appears that the applicant took the steps required by law and regulation within the prescribed time-frame and the system simply let him down.
4. Accordingly, as a matter of equity, the applicants records should be corrected to show that he made a timely SBP election of spouse and children within 1 year of his sons birth.
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 that the applicant made a timely SBP election changing his election from spouse only to spouse and children, and that the appropriate office received, processed, and accepted all of the proper documents on 1 July 2011.
_______ _ 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) AR20130013243
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ABCMR Record of Proceedings (cont) AR20130013243
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