IN THE CASE OF:	   

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140005978 


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) under the “Spouse Only” option for full coverage.

2.  The applicant states, in effect, that at the time he made his SBP election he was not married and thus declined SBP coverage at the time.  However, he got married and submitted the forms to enroll in the SBP; however, he has not been enrolled and did not realize this until he was diagnosed with cancer.

3.  The applicant provides a copy of his marriage license.

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 was serving in the Louisiana Army National Guard in the pay grade of E-6 when he received his Notification of Eligibility for Retired Pay at Age 60 (20-Year letter) on 30 April 1998.

3.  On 7 June 1998, the applicant completed a DD Form 1883 (SBP Election Certificate) in which he declined participation in the SBP due to having no dependents.

4.  On 6 June 2007, the applicant married his current spouse in Washington County, Indiana.

5.  The applicant was serving in the pay grade of E-7 in the Indiana Army National Guard (INARNG) when he was ordered to active duty in support of Operation Iraqi Freedom on 10 December 2007.  He deployed to Kuwait/Iraq during the period 20080305 – 20081127 and he was honorably released from active duty on 2 January 2009 due to completion of required service.

6.  On 30 September 2011, he was discharged from the INARNG and was transferred to the Retired Reserve.

7.  On 23 November 2013, the applicant submitted a DD Form 2656-6 (SBP Election Change Certificate) in which he elected full spouse only coverage.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  Changes in SBP options are not authorized except in specific instances, or authorized by law.  Elections are made by category, not by name.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.

10.  All issues of Army Echoes going back at least to the January - March 1998 issue carry the reminder: "REMEMBER:  You (emphasis in the original) are responsible for updating your retired pay file information at DFAS-CL (address below) within one year of the event if you marry, remarry, have a child, are widowed, or divorced and need to make or update a SBP election."

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected by adding his spouse as his RCSBP/SBP beneficiary.  However, the applicant has not provided and his records do not contain any evidence to show the applicant notified DFAS that he was married within 1 year of his marriage which would have made him eligible to elect his spouse as his RCSBP/SBP beneficiary.

2.  Accordingly, the applicant's next opportunity to enroll his spouse in the SBP will come if and when Congress next declares an open season.  The applicant is advised to read Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.

3.  While the applicant's position is certainly appreciated, the provisions for enrolling a spouse within 1 year of the marriage are very clear in the laws that govern such enrollment.  The applicant's failure to enroll his spouse within 1 year does not constitute an error or injustice on the part of the Army.

4.  Accordingly, there appears to be no basis to grant his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ___x ____  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that action in no way diminishes the sacrifices made by him in service to the United States in the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   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)                                         AR20140005978





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ABCMR Record of Proceedings (cont)                                         AR20140005978



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