BOARD DATE: 1 July 2014
DOCKET NUMBER: AR20130016538
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, in effect, that his Survivor Benefit Plan election be changed from a children only to a spouse only election which includes his current spouse.
2. The applicant states that he remarried after his discharge and requested an open enrollment but was never contacted.
3. The applicant provides copies of his Data for Payment of Retired Army Personnel, marriage license and 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 serving in the pay grade of E-7 on 29 November 1982 when he made his SBP election of Dependent Children only at a reduced amount. His spouses first name was Emma.
3. On 30 November 1982, he was honorably retired due to completion of required time for retirement. He was transferred to the Retired List effective 1 December 1982.
4. The applicant divorced his spouse on 26 June 1997 and was remarried to another spouse (Donna Marie) on 22 July 1997.
5. Public Law 92-425, the SBP, enacted 21 September 1972, 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. Changes in SBP options are not authorized except in specific instances, or authorized by law. Elections are made by category, not by name.
6. Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so. Extensive publicity was given in 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.
7. All issues of Army Echoes going back at least to the January - March 1998 issue carry the reminder: REMEMBER: You (emphasis in the original) are responsible for updating your retired pay file information at DFAS-CL (address below) within one year of the event if you marry, remarry, have a child, are widowed, or divorced and need to make or update a SBP election.
8. Army Echoes, Issue 1, January - April 2005 first alerted retirees that an SBP Open Enrollment period would run from 1 October 2005 - 30 September 2006.
9. Army Echoes, Issue 3, September - December 2005, first alerted retirees that the retiree who enrolled in the SBP during the Open Enrollment period must pay monthly premiums starting on the date of enrollment and a one-time buy-in enrollment premium. It provided an internet site that would aid retirees in calculating their cost.
DISCUSSION AND CONCLUSIONS:
1. Inasmuch as SBP elections are made by category and not by name, and since the applicant never elected a spouse only election, the applicants only opportunity to enroll his current spouse will be during an Open Season if and when one is announced.
2. It is noted that the applicant did not take advantage of one open season that occurred since his marriage to his current spouse and he is encouraged to read Army Echoes that is dispatched to Army retirees in order to be aware of when an open season is approved. The applicant is advised that open season enrollments typically require payment of buy-in premiums dating back to the time a retiree first could have enrolled in a particular category of coverage. In the applicants case that means in addition to back premiums since his marriage to Donna, he would owe premiums to cover the nearly 15 years between his retirement and divorce from Emma.
3. Therefore, since SBP elections are irrevocable unless an open season is in effect, there are no provisions for changing his election at this time.
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) AR20130016538
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ABCMR Record of Proceedings (cont) AR20130016538
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