IN THE CASE OF:
BOARD DATE: 29 April 2014
DOCKET NUMBER: AR20130013244
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 his DD Form 2656 (Data for Payment of Retired Personnel), dated 19 June 2003, be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse and children coverage.
2. The applicant states:
a. while correcting a discrepancy on his retirement leave and earnings statement with the Defense Finance and Accounting Service (DFAS), he discovered the error on his DD Form 2656. He contends his election for children only coverage is incorrect. He is happily married to the same woman for
20 years. He would like her to be the initial beneficiary, then his children.
b. he believes the person who explained the statement of spousal concurrence led them to believe if something was to happen to both of them at the same time, their children would receive the benefits. That is why he and his wife signed it.
c. the reason it has taken over 3 (apparently he means 13 years) years to catch this error is because the DD Form 2656 was sent to them in a packet from DFAS.
3. The applicant provides:
* DD Form 2656
* statement of spousal concurrence
* DD Form 2656-8 (SBP Automatic Coverage Fact Sheet)
* daughter's social security card
* marriage certificate
* two birth certificates (daughters)
* spouse's birth certificate
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 applicant enlisted in the Regular Army on 15 September 1983. He married Lori on 23 October 1993.
3. His DD Form 2656, dated 19 June 2003, shows he elected children only coverage, full base amount. Section XI (SBP Spouse Concurrence) shows the entry "see attached." A Statement of Spousal Concurrence, dated 19 June 2003, shows Lori concurred with his SBP election (no survivor coverage for spouse; but coverage for children). The statement states, I (the applicants spouse)
Do hereby concur with my spouses Survivor Benefit Plan as indicated below: (Check only one)
[election number 2 is checked] 2. No survivor coverage for spouse, but coverage for children
4. On 30 September 2003, the applicant retired in the rank of sergeant first class.
5. 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.
6. Army Echoes is the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. Congress periodically offers retirees an opportunity to enroll or increase SBP coverage outside the usual time constraints. Extensive publicity is given in Army Echoes.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record does not support the applicant's contention his election for children only coverage is incorrect. His DD Form 2656 shows he elected children only coverage and his spouse concurred with his decision on
19 June 2003. The spousal concurrence statement clearly stated his spouse concurred with his election that there was no survivor coverage for spouse, but coverage for children. Therefore, there is no basis for granting his request.
2. The applicant should read Army Echoes which would alert him to the possibility of enrolling his spouse in the SBP during an Open Enrollment Season if and when Congress should declare another Open Enrollment Season.
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) AR20130013244
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20130013244
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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