BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130018531 


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 enrollment in the Survivor Benefit Plan (SBP), spouse coverage. 

2.  The applicant states:

* he has not been allowed to add his current spouse to his SBP; he was instructed to send the marriage certificate and first divorce decree but has learned this information is incorrect
* he did not receive correct counseling regarding this matter; he thought if he married, he would be allowed to add his wife
* he faithfully served the Army for many years and he gave his life to the Army 
* he waited many years to add her during an open enrollment season and kept Army Echoes to no avail

3.  The applicant provides his divorce decree, Retiree Account Statement, marriage certificate, certified letter receipts, and a DD Form 1172 (Application for Uniformed Services Identification Card - DEERS Enrollment).

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 and Sandra were married on an unknown date.  They had two children, Rodney, born in 1974, and Stephen, born in 1977.

3.  Having had prior service, the applicant reenlisted in the Regular Army on 29 June 1978.  He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 

4.  On 9 September 1988, he and Sandra were divorced.  Their divorce decree is silent with respect to the SBP. 

5.  On 30 October 1990, in anticipation of his upcoming retirement effective 31 December 1990, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  This form shows:

* he indicated he was not married but he had dependent children
* he elected SBP coverage for "dependent children only" and listed the children as Rodney, born in 1974 and Stephen, born in 1977
* he indicated he had been fully counseled on benefits afforded under the SBP
* he and a witness authenticated this form with their signatures

6.  He retired on 31 December 1990 and he was placed on the Retired List in the rank/grade of SFC/E-7 on 1 January 1991.  He was credited with over 20 years of active service.

7.  The applicant and his current spouse Rebecca were married on 10 July 2008. 

8.  He provides certified letter receipts, dated in December 2008, and addressed to the Defense Finance and Accounting Service (DFAS), London, KY.  It is unknown what he sent or what was received by DFAS. 

9.  He also provides a copy of a letter, dated 24 November 2008, that shows he wrote to DFAS and stated that he was married and would like to add his wife to his SBP.  He added that he had enclosed a copy of his marriage certificate and that he previously sent the same information to DFAS.
10.  DFAS officials verified that the only election they had for the applicant was his "child" only coverage and that he currently has no beneficiary.  

11.  His Retiree Account Statement for October 2010 shows no SBP election or beneficiary.  His spouse Rebecca is listed as the beneficiary for arrears of pay. 

12.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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. An election, once made, was irrevocable except in certain circumstances.  

13.  Public Law 97-35, enacted on 12 August 1981, established an open enrollment season for SBP from 1 October 1981-30 September 1982.  Public 101-189, enacted on 29 November 1989, established an open enrollment season from 1 October 1991-30 September 1992 (amended to 1 April 1992-31 March 1993).  Public Law 108-375, enacted on 28 October 2004, established an open enrollment season from 1 October 2005-30 September 2006.  All of these open enrollment seasons were extensively publicized in Army Echoes to ensure all retirees were informed of their existence.  Additionally, the September – December 2008 issue of Army Echoes reminded members to tell DFAS that if they married and wished to enroll in or change an SBP election they had to do so within one year of marriage.

14.  Title 10, U.S. Code, section 1448(5)(a) (participation by person marrying after retirement, etc.) states 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.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.

DISCUSSION AND CONCLUSIONS:

1.  The applicant retired on 31 December 1990.  He was single at the time and he made an SBP election for children only coverage.  His children aged off over the years.  He married his spouse Rebecca in July 2008.  Based on the certified letter receipts he provides, it appears he intended and in fact attempted to enroll his spouse in the plan and it appears he did so within 1 year of his marriage to Rebecca.  It is unclear why DFAS did not respond to his letters, at least advising him of the required paperwork to be submitted.  

2.  Therefore, as a matter of equity, the applicant's records should be corrected to show he enrolled his spouse in the SBP within 1 year of his marriage.  Additionally, DFAS should audit his records for payment of SBP premiums and he was advised and understood his financial responsibilities. 

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:

   a.  showing the applicant made a voluntary change in his SBP election from child only to spouse and child on 10 July 2008 and that the request was received and processed by the appropriate office in a timely manner; and

	b.  collecting from the applicant the SBP premiums retroactive to the first day his spouse became an eligible SBP beneficiary.



      _______ _   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)                                         AR20130018531





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ABCMR Record of Proceedings (cont)                                         AR20130018531



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