IN THE CASE OF:	   

		BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140008926 


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 that his records be corrected to show he elected to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states:

* The request he submitted on 28 December 2007 to start the SBP for his wife was denied by the Defense Finance and Accounting Service (DFAS)
* His request was denied because he originally elected not to participate in the SBP
* He was not married at the time of retirement and during the election process
* He married in December 2007
* The denial indicated that he could only apply for the SBP if there is an Open Season of which there has not been since 2006
* When he contacted his "Army Benefits" they indicated he should have been able to apply for SBP and that if he was denied he could apply to the Army Review Boards Agency (ARBA)

3.  The applicant provides:

* PS Form 3811 (Domestic Return Receipt), dated 14 January 2006
* Self-Authored Letter, dated 28 December 2007
* DD Form 1883 (Survivor Benefit Plan Election Certificate)
* DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate), dated 21 December 2007
* DD Form 2656-8 (Survivor Benefit Plan (SBP) – Automatic Coverage Fact Sheet)
* License and Certificate of Marriage
* DFAS Letter, dated 16 January 2008

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 born on 18 November 1946.

3.  On 26 April 1966, the applicant enlisted in the U.S. Navy Reserve under the delayed entry program.  He enlisted in the U.S. Navy on 26 August 1966.  After completing 3 years, 8 months, and 9 days of total active service, the applicant enlisted in the California Army National Guard (CAARNG) on 10 May 1972.  He was honorably discharged from the ARNG and as a Reserve of the Army on 28 February 1983.

4.  On 3 March 1983, he accepted an appointment in the CAARNG in the rank of chief warrant officer two (CW2).

5.  The applicant's available records did not contain his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

6.  On 18 August 2006, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel).  In item 14 (Marital Status) he placed an "X" in the "Married" block and he completed item 22 (Spouse), which shows information pertaining to his spouse.  In section "X" (Survivor Benefit Plan (SBP) Election), the applicant placed an "X" in item 26g "I Elect Not To Participate In SBP" and "I Do Not Have Eligible Dependents Under This Plan."  Item 30 "Spouse" contains his spouse's signature acknowledging that she concurred with the SBP election.


7.  The applicant reached age 60 on 18 November 2006.

8.  On 30 November 2006, the applicant was separated from the CAARNG and he was transferred to the Retired Reserve.

9.  The applicant remarried on 8 December 2007.  

10.  On 21 December 2007, he submitted a DD Form 1883 electing SBP coverage for spouse only to provide an annuity based on the full amount of his retired pay, Option C (Immediate Coverage).  He also submitted a DD Form 2656-5 on 21 December 2007 making the same elections that he made on the DD Form 1883 he submitted.

11.  On 16 January 2008, DFAS notified the applicant that his SBP request could not be processed due to his original election to decline to participate in the SBP.  He was told that a member who is married at the time of retirement and has no dependent children may decline spousal coverage with spousal concurrence, which is what he did on his DD Form 2656.  He was told that unfortunately, if a member who is married declines to cover that spouse, the member may never cover a spouse, except within the provisions of an Open Season that might later occur.

12.  After contacting "MyArmyBenefits" the applicant received a response to his inquiry regarding SBP eligibility.  He was told that a retiree who does not have a spouse or dependent child when he was initially eligible to elect SBP, he/she may elect SBP coverage within a 1 year period after acquiring a spouse or dependent child.  He was told that if he tried to enroll his spouse in the SBP within the 1 year window after getting married and his application was denied, he could apply to ARBA for reconsideration.

13.  Department of Defense Financial Management Regulation (DODFMR), Volume 1, 7b, chapter 44, paragraph 4402 defines SBP beneficiary eligibility.  Paragraph 440201C states:  "The spouse is married to the member after the date of retirement and the member did not have a spouse at retirement and did not elect insurable interest coverage.  The member must elect to provide spouse coverage within 1 year of the marriage and spouse coverage is effective on the first anniversary of the marriage or birth of a child of that marriage, whichever is earlier."

14.  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.  It stated:

	a.  the election must be made before the effective date of retirement or else coverage defaults to automatic spouse coverage; and

	b.  an election, once made, is permanent and irrevocable except as provided for by law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  According to the applicable law, an election, once made, is permanent and irrevocable except as provided for by law.

3.  The DODFMR states if "The spouse is married to the member after the date of retirement and the member did not have a spouse at retirement and did not elect insurable interest coverage, the member must elect to provide spouse coverage within 1 year of the marriage and spouse coverage is effective on the first anniversary of the marriage or birth of a child of that marriage, whichever is earlier."

4.  Although his 20-Year Letter is not available for review, the available evidence shows the applicant was married at the time he made his initial SBP election on 18 August 2006, which was 90 days prior to reaching age 60.  The evidence also shows his spouse concurred with his election not to participate in the SBP as shown on the DD Form 2656 he completed.

5.  There is no evidence in the available record, nor has the applicant provided sufficient evidence, to support his contention that was not married at the time he made his SBP election on 18 August 2006.

6.  Congress has authorized open enrollment periods for the SBP in the past.  There is no way of knowing whether another open enrollment period will be established in the future.  However, 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 may announce the beginning of the SBP open enrollment period.

7.  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)                                         AR20140008926



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ABCMR Record of Proceedings (cont)                                         AR20140008926



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