IN THE CASE OF:  	  

		BOARD DATE:  14 October 2014	  

		DOCKET NUMBER:  AR20140002834 


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), child only coverage. 

2.  The applicant states:

   a.  The Defense Finance and Accounting Service (DFAS) in London, KY, provided him with incorrect information.

   b.  He retired January 2007, his child was born on 9 September 2008, and he married on 15 September 2008.  Immediately after his child was born, he contacted DFAS and was told to mail/fax copies of his marriage and birth certificates to show proof of his change in status.  He mailed in everything on time; however, he was subsequently told to wait a year and a month.
   
   c.  He waited a year and a month and once again contacted DFAS only to be told he was too late, they had the copies of what they needed.  They gave him an address at Fort Belvoir, VA, to appeal but it turned out to be an abandoned building.

3.  The applicant provides:

* a self-authored statement
* Department of Veterans Affairs (VA) Form 21-686c (Declaration of Status of Dependents)
* DFAS letter, dated 26 July 2012
* DFAS-CL (Retiree Account Statement)
* Certificate of Marriage
* Certificate of Live Birth
* DD Form 1173 (Identification and Privilege Card)
* Orders 192-0036
* Orders 192-0029 

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.  Having had prior service, the applicant served in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.  

3.  On 31 October 2006, in anticipation of his upcoming retirement effective 31 December 2006, the applicant completed a DA Form 2656 (Data for Payment of Retired Personnel).  This form shows he elected not to participate in SBP and  he did not have any eligible dependents.

4.  He was placed on the Retired List in the rank/grade of SFC/E-7 on 1 January 2007.  He was credited with over 20 years of active service.

5.  On 9 September 2008, the applicant's son Bryan was born.  The applicant  married his spouse on 15 September 2008.

6.   Evidence shows:

   a.  An undated request from the applicant to DFAS in which he states he would like to enroll his son in the SBP.  He states his son's birth certificate and other information is enclosed.  He further asks DFAS, in effect, if they could take the monthly payments from his retired pay during the next open season. 
   
   b.  DFAS received a request to enroll his spouse and child in the SBP on     19 April 2012.

   c.  On 21 May 2012, DFAS informed the applicant they could not process his SBP request because they were missing several pieces of information/documentation.
   
   d.  On 26 July 2012, DFAS informed the applicant that since they did not receive his marriage certificate and child's birth certificate within a year of the date of his marriage and addition to his family, he could no longer elect coverage. 

7.  His Retiree Account Statement for January 2014 shows no SBP election or beneficiary.   

8.  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.  

9.  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 and his spouse married on 15 September 2008.  He was authorized up to 1 year from the date of marriage to enroll his spouse and son in the SBP.  He asserts he missed the 1-year deadline due to incorrect information from DFAS.

2.  He provides insufficient evidence to support his contention that he was given incorrect information from DFAS concerning the requirements to enroll his spouse and son as his SBP beneficiaries and, unfortunately, the request he provides is undated.

3.  Periodically, Congress enacts laws that establish open enrollment seasons during which certain rules regarding enrollment or disenrollment are announced.  Open seasons generally permit retirees who are not participating to enroll and those not fully participating to increase the level of coverage.  A buy-in cost, typically capturing premiums back to the point a retiree was first eligible for coverage, is associated with open season enrollment.  The last open enrollment season was October 2005 through September 2006.  It is unknown if and when the next open season may be offered.

4.  In view of the foregoing evidence, he 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)                                         AR20140002834





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ABCMR Record of Proceedings (cont)                                         AR20140002834



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