BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140004791 


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 was granted an exception to policy to elect spouse and children Survivor Benefit Plan (SBP) coverage.

2.  The applicant states:

* the SBP rules were applied unfairly
* U.S. Embassy (Moscow) policies prevented him from marrying his spouse until 2000
* his spouse is the mother of all of his children and they would have married sooner if they had been able
* he was given a DD Form 1998 (presumed to mean a DD Form 1883) (SBP Election Certificate) and he designated his oldest son as beneficiary
* he would have designated his wife had the U.S. Government allowed them to marry in 1995 or 1996
* he was still serving in the U.S. Embassy (Moscow) when he got married and he had no way of knowing the SBP and financial rules
* in 2012, he received his U.S. Army Reserve (USAR) retired pay application paperwork
* he completed a DD Form 2656 (SBP Election Change Certificate) and elected coverage for his wife
* his request was later denied

3.  The applicant provides:

* a self-authored statement
* a DD Form 2656
* a DD Form 1883
* a self-authored letter to a representative of the U.S. Army Human Resources Command (HRC), dated 16 August 2013
* his Russian marriage certificate with translation
* his retirement orders
* an SBP Fact Sheet

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.  After having prior honorable enlisted service in the Regular Army, the applicant was appointed as a second lieutenant (2 LT) in the Regular Army on 14 March 1979.

3.  On 1 July 1990, he was honorably discharged.  On 2 July 1990, he accepted an appointment as a 2LT in the USAR.

4.  On 6 August 1998, he received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

5.  On 6 October 1998, he completed a DD Form 1883 and elected Option C (Immediate Coverage) under the SBP for child-only coverage.  This form shows he was unmarried at the time; however, he had one son.

6.  He provides a copy of his Russian marriage certificate and a translation that states he was married on 30 September 2000.

7.  On 30 March 2012, he submitted a DD Form 2656, wherein he elected spouse and children SBP coverage.

8.  On 2 July 2013, he was placed on the Retired List.

9.  On 16 August 2013, he submitted a letter to a representative of HRC, requesting his wife and two sons be added to his SBP coverage.  This letter states the Defense Finance and Accounting Service (DFAS) advised him in early August 2013 that his 1998 SBP coverage submission took priority and that he had 1 year after his marriage to add his wife as an SBP beneficiary.

10.  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.  Elections are made by category, not by name.  

11.  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.

12.  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 two 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 and in other Army publications.  

DISCUSSION AND CONCLUSIONS:

1.  DFAS records show the applicant elected child-only SBP coverage in 1998.  He gained eligible beneficiaries when his other sons were born and when he married on 30 September 2000.

2.  By statute, he had to make an election to participate in the SBP within 1 year of his marriage.

3.  His records are void of and he failed to provide any evidence that shows he attempted to enroll his spouse in the SBP within 1 year of his marriage or that he attempted to participate in the 2005-2006 Open Season.

4.  In view of the above, there is an insufficient evidentiary basis for granting 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)                                         AR20140004791



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ABCMR Record of Proceedings (cont)                                         AR20140004791



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