IN THE CASE OF:
BOARD DATE: 21 April 2015
DOCKET NUMBER: AR20140013880
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 he be allowed to participate in the Survivor Benefit Plan (SBP).
2. The applicant states he did not know that he had only 12 months from the date of marriage to submit the request. He completed the form 1 month late.
3. The applicant provides copies of a DD Form 2656-6 (SBP Election Change Certificate) and a Certificate of Marriage.
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 served on active duty from 28 December 1982 through 31 December 2006 and retired as a sergeant first class with 24 years and 3 days of service.
3. The available separation counseling checklist does not indicate whether the applicant received counseling on the provisions and requirements of SBP.
4. The applicant's 1997 reenlistment document shows he had a wife and two children but does not show his wife's name. The marriage license provided shows the applicant married on 7 September 2009. The record contains no evidence of his marital status at the time of his retirement or at any point prior to the 2009 marriage.
5. The DD Form 2655-6 provided, dated 10 November 2010, shows his current coverage was for child only. Item 8 (Marriage) is marked indicating the member did not have a spouse at the time of initial eligibility. He requested conversion to spouse and child coverage listing his wife by name but not listing any children.
6. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or as authorized by law.
7. Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and/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 on which that person marries or acquires that dependent child.
DISCUSSION AND CONCLUSIONS:
1. The applicant was married on 7 September 2009 and completed the SBP election request 14 months later.
2. The available evidence does not include any evidence to validate the applicant's marital status at the time of his initial SBP election or at any point prior to his 2010 election change request.
3. There is no provision in the SBP law to allow for a late application following marriage or remarriage.
4. Although rare, Congress sometimes authorizes an Open Season for enrollment. If one is authorized by Congress, notification of the particulars will appear in the Army Echoes.
5. Based on the above facts and findings, there is insufficient evidence to demonstrate an error or injustice in the records.
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) AR20140013880
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20140013880
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | 20140010677
A Notification of Eligibility for Retired Pay at Age 60 letter, prepared on 9 July 1996, wherein the FSM was notified of completion of the required years of service and eligibility for retired pay upon application. There is no evidence of record that the FSM elected to change his SBP coverage by adding spouse coverage within 1 year of the date of his marriage to the applicant (7 December 1999). Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had...
ARMY | BCMR | CY2010 | 20100014354
A DFAS General Counsel finding provided to the Board states, in pertinent part: * Upon review of all documentation, it was concluded there is no evidence to support a common law marriage between the FSM and applicant prior to his retirement or any time thereafter * The FSM and applicant have been together since 1972 * While he was not married to the applicant at the time of his retirement, the FSM appears to have claimed her as his spouse for SBP purposes in 1977 * In a letter, dated 11...
ARMY | BCMR | CY2013 | 20130007260
The applicant, as the widow of a deceased former service member (FSM), requests correction of the FSM's military records to show he changed his Survivor Benefit Plan (SBP) coverage to spouse coverage during an Open Season from 1992 through 1993. The FSM retired on 31 August 1985 and he elected dependent child only coverage. The available evidence shows the FSM made a written request to add the applicant to his SBP coverage.
ARMY | BCMR | CY2012 | 20120021742
The applicant requests, in effect, correction to his records to show he changed his Survivor Benefit Plan (SBP) coverage from "child only" to his current spouse within 1 year of his marriage. When the applicant married his current spouse on 18 April 2009, he had 1 year (anniversary date 18 April 2010) to add her using a DD Form 2656-6 (SBP Election Change Certificate) and he opted not to. The evidence of record shows the applicant, though married, elected SBP coverage for "children only"...
ARMY | BCMR | CY2011 | 20110003348
The applicant requests, in effect, that his records be corrected to show he elected his wife as his Survivor Benefit Plan (SBP) beneficiary within a year of their marriage. Since the applicant did not apply for SBP within a year of his marriage in 1999, he could not later elect SBP unless there was an open season. The applicant requested spouse and child SBP coverage when he applied for retired pay; however, he was not entitled to do so.
ARMY | BCMR | CY2010 | 20100022811
A DD Form 2656 (Data for Payment of Retired Personnel) provided by DFAS shows the following: * retirement date 1 October 2004 * spouse F____ * child S____ with a date of birth of 23 July 1991 * SBP election 26b, coverage for spouse and child(ren) * date signed 7 July 2004 4. DFAS stated in an email to this Board, dated 9 May 2011, the FSM's DD Form 2656 was submitted by Fort Carson on 3 November 2004 and shows he elected spouse and child(ren) coverage. The applicant and the FSM...
ARMY | BCMR | CY2012 | 20120009333
The applicant requests correction of his record to show he enrolled his spouse in the Survivor Benefit Plan (SBP) in a timely manner and correction of his daughter's date of birth (DOB) that is recorded in his finance record. Additionally, on 6 November 2012, an official at DFAS confirmed there was no record that the applicant requested enrollment in the SBP with spouse coverage within 1 year of his date of marriage. There is no evidence the applicant submitted an application to enroll in...
ARMY | BCMR | CY2010 | 20100010010
The FSM was born on 23 February 1968 and he enlisted in the Louisiana Army National Guard (LAARNG) on 11 August 1986. Therefore, even if he had been married to the applicant for a year, she would still not be eligible to receive an SBP annuity because the FSM named his children as the beneficiaries of his SBP annuity and never added the applicant. _______ _ X _______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for...
ARMY | BCMR | CY2009 | 20090003877
Application for correction of military records (with supporting documents provided, if any). On 30 January 2009, he submitted another DD Form 2656 requesting his wife be added as his sole surviving beneficiary. The evidence of record shows the applicant did not attempt to change his SBP coverage until 30 January 2009, more than 11 years after his marriage to his current spouse.
ARMY | BCMR | CY2008 | 20080018163
The applicant states, in effect, that one month after he married his wife, he made a phone call to inquire about electing SBP coverage for his new wife and was told he had to be married for one year in order to apply for it. He indicates that at the conclusion of his first year of marriage, he made a second inquiry to DFAS and submitted the required documents to obtain SBP coverage, as he had been told to do by DFAS personnel. The applicants Official Military Personnel File contains no...