BOARD DATE: 9 August 2015
DOCKET NUMBER: AR20140013108
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, that his record be corrected to show he elected Survivor Benefit Plan (SBP) coverage for his spouse after marriage.
2. He states:
* at the time he retired, he was single
* when he married in 2002, he was unaware of the SBP program or its enrollment timeframe
3. He provides a:
* DD Form 2656 (Retirement Application - Data for Payment of Retired Personnel)
* License and Marriage Certificate
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 29 June 1974 and was retired on 30 June 1998. He was credited with 20 years and 2 days of active duty service.
3. He submitted:
a. a DD Form 2656, dated 16 March 1988, which shows in Section 28g (Beneficiary Categories), he elected not to participate in SPB due to not having any eligible dependents; and
b. his license and marriage certificate, which shows he married his current spouse on 4 October 2002.
4. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members 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 as authorized by law.
5. Army Echoes is 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. The September - December 2007 (and subsequent issues) informed retirees about Pay/SBP. The bulletin provided a website as well as telephone numbers concerning "Pay inquiries and update of pay or SBP records in case of death, divorce or remarriage."
6. 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 dependent children.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he was unaware of the requirement to make an SBP election within one year of the date of marriage is not sufficiently mitigating to warrant granting the requested relief. Such information was provided to all retirees in Army Echoes.
2. The evidence of record shows he did not attempt to change his SBP coverage until 18 July 2014, more than twelve years after his marriage to his current spouse.
3. The applicant is advised that he may make a change to his SBP election during the next Open Season, as periodically authorized by Congress. Open Seasons are announced in Army Echoes, which he should currently be receiving, and/or he can obtain additional information on SBP Open Seasons from the Retirement and Annuitant Pay Section of the DFAS website http://www.dod.mil/dfas/ money/ retired/ index.htm.
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) AR20140013108
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ABCMR Record of Proceedings (cont) AR20140013108
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