IN THE CASE OF:
BOARD DATE: 10 July 2014
DOCKET NUMBER: AR20130019287
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 correction of his records to show he requested Survivor Benefit Plan (SBP) coverage for his spouse and step-child in a timely manner.
2. The applicant states he retired from active duty (AD) on 31 May 2008. He reentered AD as a retiree recall in October 2008 and served continuously until he was released from AD at his expiration term of service in July 2013. He remarried in May 2012 while serving on AD. He states, in effect, that in the event of a Soldier's death while serving on AD, he or she is only offered Servicemembers' Group Life Insurance (SGLI), not SBP. He opted out of the SBP at the time of his AD retirement in 2008 given that he was not married at the time. He is now seeking to opt in to the SBP following his honorable discharge on 31 July 2013.
3. The applicant provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 May 2008
* DD Form 214 for the period ending 31 July 2013
* Certificate of Marriage
* DD Form 2656-6 (SBP Election Change Certificate), dated 25 June 2013
* Defense Finance and Accounting Service (DFAS) memorandum denying his application to add his spouse to his SBP
* Consular Report of Birth Abroad of a Citizen of the United States of America
* Fort Belvoir Community Hospital medical statement
* Standard Form 93 (Report of Medical History)
* Retirement Benefits Court Order
CONSIDERATION OF EVIDENCE:
1. He provides a Retirement Benefits Court Order, dated 27 April 2006, which shows he was required to provide a portion of his retired pay to his former spouse. The document is absent any language regarding the SBP.
2. On 7 December 2007, in connection with his retirement processing, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel). On this form, he indicated that he elected not to participate in the SBP and that he did not have any eligible dependents under the plan.
3. On 31 May 2008, the applicant voluntarily retired from active service in the Army National Guard of the United States in the rank of Colonel due to sufficient service for retirement.
4. On 26 October 2008, he was ordered to active duty in accordance with Title 10, U.S. Code, section 688.
5. He provides a Certificate of Marriage showing he married O----- V---- on 9 May 2012. The certificate shows he was divorced from his only marriage at the time. He also provides a Consular Report of Birth Abroad of a Citizen of the United States of America of a child of his current spouse and a memorandum (medical statement) indicating the child has an autism spectrum disorder.
6. On 25 June 2013, he completed a DD Form 2656-6 (SBP Election Change Certificate). On this form, he indicated he had no coverage at the time and that he was requesting a change in coverage based on his marriage. The pertinent block contains the following statement: "A member, who does not have a spouse at the time of initial eligibility, may provide SBP for the first spouse acquired after retirement by electing coverage before the first anniversary of that marriage. Coverage and cost begin on the first anniversary of the marriage." Section IV further shows he elected spouse and child coverage based on his full retired pay.
7. On 31 July 2013, he was released from active duty and transferred to the USAR Control Group-Retired Reserve. His DD Form 214 shows he served through continuously amended recall to active duty orders from 26 October 2008.
8. On 15 August 2013, the Defense Finance and Accounting Service (DFAS) notified the applicant that he was unable to add his spouse to his SBP because he had not notified DFAS prior to his first year anniversary.
9. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
10. 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 applicant was not married when he completed his original DD Form 2656 in December 2007 and elected not to participate in the SBP. He retired on 31 May 2008.
2. While on recall to active duty orders, the applicant married on 9 May 2012. Evidence shows he attempted to add his spouse and step-child to his SBP in June 2013, which was slightly more than 1 year after his marriage.
3. His explanation that he believed he was unable to request this change to his SBP while still on active duty is plausible under the circumstances. It appears his former spouse has no right to his SBP benefits based on the divorce decree.
4. In view of the foregoing, it would be appropriate and equitable to correct the applicant's record to show he made and signed a written request to add spouse and child coverage to his SBP election and that his request was received and accepted by DFAS within 1 year of his marriage.
BOARD VOTE:
___X____ ___X____ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined 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 to show he submitted a written request for spouse and child SBP coverage and that his request was received and accepted by DFAS on 1 June 2012, within 1 year of his marriage.
_________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) AR20130019287
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ABCMR Record of Proceedings (cont) AR20130019287
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