IN THE CASE OF:
BOARD DATE: 22 January 2014
DOCKET NUMBER: AR20140007886
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, in effect, correction of his records to show he elected coverage under the Survivor Benefit Plan (SBP) for his second wife.
2. The applicant states:
* his SBP election form completed at the time of his retirement is in error
* records indicate he was married at the time, but that is incorrect
* he was divorced at the time of his retirement
* he remarried on 27 November 2013 and would like to enroll his spouse in the SBP
3. The applicant provides:
* copy of divorce decree, dated 20 May 1991
* copy of marriage license, dated 27 November 2013
CONSIDERATION OF EVIDENCE:
1. On 1 May 1992, prior to his retirement from active duty service (full-time National Guard duty), the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel) wherein he declined SBP coverage, indicating the following:
* item 14 (Are you married?) no
* item 14a (Do you have dependent children?) yes
2. On 31 October 1992, he retired and he was placed on the Retired List effective 1 November 1992. He completed 20 years of active service.
3. The Defense Finance and Accounting Service does not have any record showing the applicant ever elected SBP coverage.
4. The applicant provided a copy of his marriage license which shows he remarried on 27 November 2013.
5. Department of Defense Instruction 1332.42 provides the responsibilities and procedures for administering the Survivor Annuity Program, which includes the SBP. Enclosure 3 to this instruction provides the procedures for administering the SBP.
a. Paragraph 2a states a member entitled to retired pay based on active service who has a spouse or dependent child is considered a participant having maximum SBP coverage, unless the member, with spousal concurrence if married, elects less-than-maximum spouse coverage, child-only coverage, or not to participate in the program.
b. Unless such election is made prior to the first day of entitlement to retired pay, automatic coverage for maximum spouse or spouse and child coverage shall be entered. An election under this paragraph is irrevocable, unless otherwise provided by law, if not revoked before the date on which the person first becomes entitled to retired pay.
6. Public Law 108-375, enacted 28 October 2004, established an open enrollment period from 1 October 2005 to 30 September 2006 for members who were entitled to retired pay on the day before the first day of the open enrollment period.
7. Title 10, U.S. Code, section 1448(a)(4)(A), provides that an election under the SBP is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay.
8. Title 10, U.S. Code, section 1448(a)(5)(A), 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. Prior to his retirement on 31 October 1992, the applicant declined SBP coverage for his dependent children. He was not married at the time.
2. The applicant remarried on 27 November 2013 and now desires to change his SBP election to cover his current wife under the SBP.
3. Although the applicant was not married at the time he became eligible to participate in the SBP and made his election declining coverage, he did have dependent children. Due to the fact that he had dependent children at the time he declined coverage, he is not eligible to now elect to participate in the SBP covering his current wife.
4. The only way the applicant can elect to participate in the SBP for his current spouse is during an open enrollment period. The last open enrollment period was from 1 October 2005 to 30 September 2006. The applicant is advised to monitor Army Echoes for announcement of any future open enrollment periods Congress may authorize.
5. In view of the above, there is no basis for granting relief in this case.
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 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) AR20140007886
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ABCMR Record of Proceedings (cont) AR20140007886
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