IN THE CASE OF:
BOARD DATE: 16 October 2014
DOCKET NUMBER: AR20140003223
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 record to show he elected spouse coverage under the Survivor Benefit Plan (SBP) instead of child(ren)-only SBP coverage.
2. The applicant states he feels it was not explained clearly that his spouse would not receive compensation upon his death.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 retired from the Regular Army on 31 July 2004, in the rank of staff sergeant, after completing more than 20 years of active service.
3. During the processing of this case, the Defense Finance and Accounting Service (DFAS) provided a DD Form 2656 (Data for Payment of Retired Personnel) that the applicant signed on 30 March 2004.
a. In Section IX (SBP Election) of this form, he completed item 26 (Beneficiary Category(ies)), electing child(ren)-only SBP coverage based on his full gross pay for children born in 1997 and 2002. He indicated he had a spouse.
b. In section XI (SBP Spouse Concurrence), his spouse concurred with the SBP election made by the applicant. In doing so, she acknowledged she had received information that explained the options available and the effects of those options; that retired pay stopped on the day the retiree dies; and that she had signed the statement of her own free will.
c. The form was signed by his spouse and a witness on 30 March 2004.
4. Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP. It provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name. An election, once made, is permanent and irrevocable except as provided for by law.
5. Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The applicant completed his DD Form 2656 on 30 March 2004, at least 4 months prior to his retirement on 31 July 2004. He made a valid SBP election of children-only SBP coverage based on the full amount of his retired pay. His election was an irrevocable election except under circumstances prescribed by law, such as an open season or an event such as gaining a dependent.
2. He contends it was not explained clearly that his spouse would not receive compensation upon his death. There is no evidence that he did not receive an SBP briefing; however, the SBP election form is self-explanatory. Completion instructions are on pages 3-4 of the DD Form 2656. Further, he could have clarified any questions concerning the SBP by contacting a Retirement Services Officer.
3. His election form shows he had two children, ages 7 and 9 at the time. Because of his election, had he died before now the children would have received an SBP annuity.
4. The applicant is advised to read Army Echoes, the Army bulletin published, and now online, to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. If Congress establishes another SBP Open Enrollment Season, Army Echoes will give guidance on how to enroll his spouse in the SBP.
5. There is no evidence of error or injustice in this case. As such, there is no basis for granting the applicant's request.
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) AR20140003223
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ABCMR Record of Proceedings (cont) AR20140003223
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