IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140012339 


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 Survivor Benefit Plan (SBP) coverage for his spouse within one year of remarrying.

2.  The applicant states that he was not required to select SBP coverage at the time of retirement from active Army service because he was a single Soldier.  However, he was not fully aware that he must submit documentation of marriage within a year in order for his spouse to be eligible for SBP benefits in the event of his death.

3.  The applicant provides:

* Certificate of Marriage
* Enlisted Record Brief
* DD Form 93 (Record of Emergency Data)
* DD Form 2656 (Data for Payment of Retired Personnel)
* DD Form 2656-6 (SBP Election Change Certificate)
* Defense Finance and Accounting Service (DFAS) memorandum
* Request for Voluntary Retirement Packet with allied documents
* DD Form 214 (Certificate of Release or Discharge from Active Duty)





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.  On 16 May 2005, in anticipation of his upcoming retirement, the applicant completed a DA Form 2656.  This form shows he elected not to participate in the SBP and he indicated that he did not have any eligible dependents.

3.  On 31 August 2005, he was retired due to sufficient service for retirement and placed on the Retired List on 1 September 2005 in the rank/grade of master sergeant (MSG)/E-8.  He was credited with completing over 22 years of active service.

4.  The applicant married his spouse, Sxxx, on 16 January 2008.

5.  On 18 February 2014, he completed a DD Form 2656-6.  He indicated that he currently had no coverage and he would like to change his coverage based on his marriage.  He elected spouse only coverage based on the full amount. 

6.  On 11 March 2014, DFAS notified the applicant that there was no automatic coverage for any spouse and/or children newly acquired after retirement.  A request to add SBP coverage based on marriage must be received within one year of the date of marriage or the individual looses the right to make an election.  Since his application was not received within the one-year anniversary, DFAS was unable to cover his spouse at that time. 

7.  Public Law 92-425, enacted on 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.

8.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married or 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 in which that person marries or acquires that dependent child.

DISCCUSSIONS AND CONCLUSIONS:

1.  The applicant contends he should be allowed to enroll in the SBP for spouse only coverage because he was not aware that he had only one year from the time of marriage to make such an election.

2.  On 31 August 2005, the applicant retired and he declined SBP coverage and indicated that he had no eligible family members.  On 16 January 2008, he was married and it appears that he did not apply for SBP coverage until February 2014.

3.  The governing law is clear in that a person who is not married, but who later marries, may elect to participate in the SBP with spouse coverage.  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.  The applicant failed to make such an election within 1 year after the date on which he was married.

4.  The sincerity of the applicant's contention is not in question; however, there is no evidence the applicant submitted an application to enroll in SBP with spouse coverage within 1 year of the date of their marriage.

5.  Regrettably, in view of the foregoing, the applicant is not entitled to correction of his record to show he enrolled in the SBP with spouse coverage.

6.  The applicant is advised that, on occasion, the U.S. Congress enacts into law an SBP Open Season.  For example, 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 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  It required the retiree to pay monthly premiums starting on the date of enrollment and a buy-in premium covering all costs that would have been paid for the election if it had been made at the first opportunity to do so.  Therefore, the applicant is encouraged to monitor military media and/or websites in the event an SBP Open Season is enacted into law in the future.



7.  The applicant is also advised that he may wish to contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding the SBP.  A listing of RSOs by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp.

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)                                         AR20140012339



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ABCMR Record of Proceedings (cont)                                         AR20140012339



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