BOARD DATE: 25 June 2015
DOCKET NUMBER: AR20140016741
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 correction of his military records to show he elected spouse and children coverage under the Survivor Benefit Plan (SBP).
2. The applicant states:
a. Apparently his SBP benefit is no longer in effect because his retirement DD Form 2656 (Data for Payment of Retired Personnel) shows he elected children-only coverage. He marked the box for spouse and children coverage. However, a representative from the Defense Finance and Accounting Service (DFAS) reviewed the original form with him while on the telephone and noted there may be a discrepancy as to which box is marked correctly.
b. He and his spouse discussed this matter in great detail while attending the retirement exit briefing and they decided to choose spouse and children coverage. At that time both children were minors and he would not have marked children-only coverage unless he was single.
c. Spouse and children coverage is clearly marked on the DD Form 2656, dated 3 December 2001.
d. He is still married to his spouse of 28 years, the same woman he was married to at the time the DD Form 2656 was signed and dated.
3. The applicant provides:
* DD Form 2656, dated 3 December 2001
* 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 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 enlisted in the Regular Army on 21 September 1982. He married on 4 November 1985.
3. He provided a DD Form 2656, dated 3 December 2001, which shows he elected SBP coverage for spouse and children, full base amount.
4. DFAS records contain a DD Form 2656, dated 17 July 2002, which shows he elected SBP coverage for children only, full base amount. Section XI (SBP Spouse Concurrence) (required when member is married and elects child(ren) only coverage, does not elect full spouse coverage, or declines coverage) of this form shows his spouse concurred with the SBP election.
5. On 30 September 2002, he retired in the rank of staff sergeant.
6. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's DD Form 2656, dated 3 December 2001, which shows he elected spouse and children coverage was noted. However, since a Soldier can change their SBP election anytime before retirement, it appears he and his wife changed their minds as evidenced by his DD Form 2656, dated 17 July 2002, which shows he elected children-only coverage with her concurrence. This form was executed with the assistance of the same G-1/Adjutant General representative who assisted with the earlier form.
2. The evidence of record does not support the applicant's contention that his election for children-only coverage is incorrect. His DD Form 2656 on file at DFAS shows he elected children-only coverage and his spouse concurred with his decision on 17 July 2002. Therefore, there is no basis for granting his 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 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) AR20140016741
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ABCMR Record of Proceedings (cont) AR20140016741
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