IN THE CASE OF:	  

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140009007 


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 spouse be enrolled as the beneficiary of his Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, that he was not properly advised of all of the options and requirements of the SBP at the time of his retirement.  He goes on to state that when he was retired his wife was made his beneficiary and he thought she was in the SBP; however, he has since been informed that she was not eligible because he did not notify the Defense Finance and Accounting Service (DFAS) within 1 year of his marriage. 

3.  The applicant provides a copy of a letter from the DFAS.

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 U.S. Army Reserve (USAR) in the pay grade of E-5 when he was issued his 20-Year letter on 25 September 2002.

3.  He was divorced and had three children at the time he made his Reserve Component SBP (RCSBP) election of children only (full and immediate coverage) on 19 November 2002.

4.  He was promoted to the pay grade of E-6 on 15 July 2005 and on 30 April 2006 he was married to his current spouse in Jefferson County, Ohio.  He was transferred to the Retired Reserve on 11 September 2006.

5.  On 25 January 2013, he completed a DD Form 2656 (Data for Payment of Retired Personnel) in which he elected full spouse only SBP coverage.  He indicated all of his spouse’s information and indicated that he had no dependent children.

6.  On 18 November 2013, he was placed on the Army of the United States (AUS) Retired List.

7.  There is no evidence in the applicant's official records to show that he ever notified the DFAS within the 1-year statutory period of his marriage that he was married.  

8.  On 20 March 2014, the DFAS notified the applicant that he was required to notify the DFAS within 1 year of marriage in order to be eligible for her enrollment in the SBP.  The DFAS also advised the applicant that he could apply for enrollment if Congress approved an Open-Season.

9.  A review of his official records shows that his youngest dependent child turned 21 years of age in 2009.

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.

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 one year after the date on which that person marries or acquires that dependent child.  

12.  In past years, Congress has periodically established an Open Season to be conducted to allow retirees who have not taken full advantage of the SBP to enroll or change their options to a higher benefit.  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 is normally given in 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.  

13.  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.”  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to change his SBP election from children-only to spouse-only.

2.  The applicant submitted a DD Form 1883 electing children-only coverage.  At the time he submitted the DD Form 1883 on 19 November 2002 he was not married to his current spouse.  At the time he signed the DD Form 1883, he acknowledged that he understood that the decision made with respect to participation in the SBP is a permanent irrevocable decision.

3.  The applicant's contentions have been noted.  However, the applicant has not provided and his records do not contain any evidence to show that the applicant notified the DFAS within 1 year of his marriage, that he had married, which would have made him eligible to elect the change of his SBP beneficiary to add his spouse. 

4.  Accordingly, the applicant's next opportunity to enroll his spouse in the SBP will come if, and when, Congress next declares an Open Season.

5.  While the applicant contends that he was never informed that he had to notify the DFAS within 1 year of his marriage in order to enroll his spouse in the SBP, the law is very specific in that regard and he has provided no evidence to establish that he was not informed of the requirement or that he even inquired from DFAS of the requirement.

6.  Accordingly, there appears to be no legal basis to grant his request to enroll his spouse as his beneficiary at this late date.

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)                                         AR20140009007





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ABCMR Record of Proceedings (cont)                                         AR20140009007



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