IN THE CASE OF:	  

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130016016 


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 participation in the Survivor Benefit Plan (SBP) for his spouse. 

2.  The applicant states:

	a.  He was not married when he was discharged.  He got married in November 2007.  His wife and he went to the ID Card Office to get her added to the Defense Enrollment Eligibility Reporting System (DEERS) and get her set up for insurance and all other important things.  The ID Card Office told him everything was taken care of.  Shortly after that, he received a letter in the mail for him to add her to the SBP.  He sent the information in but never heard back.  He sent it in again and still nothing.  He assumed everything was good to go.  According to his Retiree Account Statement, his wife had been added as beneficiary for arrears of pay but she had not been added for his SBP coverage.

	b.  He contacted the Defense Finance and Accounting Service (DFAS) Retired Military Pay about this error.  They had him send in the correct paperwork in May of 2013.  He called again to check on things in August 2013 to make sure everything was okay.  They informed him that it was too late and that nothing could be done.  They then referred him to this Board.  

	c.  He believes the error is unjust.  He sent the paperwork in to add his wife to the SBP coverage at the right time and they did not process it or it was lost in the mail.  He has tried three times to get this corrected.  He needs help in fixing this error.  He kept sending the paperwork in, thinking that it was going to be taken care of.  He was told by his State headquarters to send his correspondence to DFAS, London, KY.  It was not until this year that he was told it was too late and that this was the last option except for an Open Season granted by Congress to add her.  He was told by DFAS that there has not been an Open Season since 1999.  He feels he has been given the run around each time he has contacted someone about this.  He was told to keep sending things in but nothing was ever accomplished and not told anything different until this year. He is getting on in years and does not want to leave it up to chance for him to be able to get this taken care of during an Open Season. 

3.  The applicant provides:

* DD Form 2656-6 (SBP Election Change Certificate)
* Marriage Certificate
* Divorce Decree

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 was born in July 1942.  He and Barbara were married on an unknown date.

3.  Having had prior enlisted service, the applicant enlisted in the Tennessee Army National Guard (TNARNG) on 30 October 1976.  He served through multiple extensions and he attained the rank/grade of staff sergeant (SSG)/E-6.  

4.  The applicant and Barbara were divorced on 29 May 1985.  The extract of the divorce decree provided by the applicant is silent with respect to the SBP. 

5.  On 18 September 1989, the TNARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified him that he had completed the required years of service and he would be eligible for retired pay at age 60, upon application.  This letter further informed him that by law, he had only 90 calendar days from the date he received this letter to submit his DD Form 1883 (SBP Election Certificate). 

6.  There is no indication the applicant made an election within 90 days. 

7.  The applicant was honorably discharged from the ARNG and transferred to the Retired Reserve on 1 April 1997.  

8.  As he approached 60 years of age, he submitted an application for retired pay.  With his application, he submitted a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated he was single and elected not to participate in the SBP.  

9.  He was placed on the Retired List in his retired rank/grade of SSG/E-6 on 31 July 2002.  

10.  On 8 November 2007, he and Karen were married. 

11.  He provides a DD Form 2656-6, dated 16 July 2013, requesting to change his participation from "no coverage" to "spouse" coverage, based on the full retired pay, as a result of marriage. 

12.  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.  

13.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component (RC) members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:

* Option A - elect to decline enrollment and choose at age 60 whether to start RCSBP participation
* Option B - elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

14.  Title 10, U.S. Code, section 1448(5) (Participation by person marrying after retirement) states.  
	a.  Election to participate in plan.— A person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan.  

	b.  Manner and time of election.— 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. 

	c.  Limitation on revocation of election.— Such an election may not be revoked except in accordance with subsection (b)(3).   

	d.  Effective date of election.— The election is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned. 

15.  Army Echoes, 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, contains the reminder (in every issue from at least August 2002 forward):  “You are responsible for updating your retired pay file at DFAS-CL (address below) within one year of the event if you marry, remarry, are widowed or divorce(d) and need to make or update a Survivor Benefit Plan (SBP) election.”

16.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records do not indicate he elected to participate in the RCSBP within 90 days of receiving his 20-year letter, and it appears he was not married at that time.

2.  By not responding to his 20-year letter notification, the applicant effectively deferred his SBP election to age 60.  However, in 2002 at age 60, the applicant was not married and had no dependents.  He chose to decline participation in the SBP.  

3.  The applicant married his spouse on 11 November 2007.  By law, 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. 

4.  Army Echoes reminds retirees that such a change must be made through DFAS (not through the local ID Card Office).  The applicant did not submit a request to participate in the SBP for his spouse within 1 year of their marriage.  He effectively forfeited future participation until Congress authorizes an Open Season.  The last Open Season was in 2005.  It is unknown when the next Open Season will take place.  

5.  The applicant 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)                                         AR20130016016





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ABCMR Record of Proceedings (cont)                                         AR20130016016



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