IN THE CASE OF:
BOARD DATE: 21 July 2015
DOCKET NUMBER: AR20140017889
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 records to show he elected participation in the Survivor Benefit Plan (SBP).
2. The applicant states he was not aware that he had to apply within 1 year of being discharged.
3. The applicant provides no additional evidence.
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 born on XX May 1955.
3. He enlisted in the Regular Army on 23 September 1975.
4. His records contain pages 3 and 4 of his DA Form 3286 (Statements for Reenlistment), dated 27 June 1980, that show he indicated in Part IV (Dependency Statement) that he had a wife who was age 23 and a son who was age 6 at the time.
5. His DA Form 2A (Personnel Qualification Record Part I), dated 24 January 1995, shows he was divorced and had two dependents.
6. His DD Form 2656 (Data for Payment of Retired Personnel), dated 14 July 1995, shows:
* he indicated he was single
* he had two dependent daughters born in 1987 and 1988
* he elected not to participate in SBP
* his form was signed and dated by a witness
7. On 30 September 1995, the applicant retired.
8. His records are void of and he failed to provide any evidence showing he remarried or acquired dependents since his retirement or that he notified the Defense Finance and Accounting Service within 1 year of acquiring a wife or dependents.
9. 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. Elections are made by category, not by name.
10. 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 that dependent child.
11. The term "dependent child" means a person who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self support because of a mental or physical incapacity existing before the person's 18th birthday, or is the child of a person to whom the SBP applies, including an adopted child, a step or foster child, or a recognized natural child who lived with that person in a regular parent-child relationship.
12. Public Law 108-375, enacted 28 October 2004, established an open enrollment season from 1 October 2005 through 30 September 2006. It required enrollees to live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. 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 if the election had been made at the first opportunity to do so. Extensive publicity was given in Army Echoes and other Army publications.
DISCUSSION AND CONCLUSIONS:
1. Records show the applicant was not married and he had two dependent children at the time he completed his DD Form 2656.
2. Although he was unmarried, he could have elected children-only SBP coverage for his dependent daughters. Instead he chose not to participate in SBP.
3. His records are void of and he failed to provide any evidence showing he remarried. Even had he done so he would not be entitled to enroll because he earlier opted not to participate. His only chance to enroll is during an open season.
4. His records are also void of and he failed to provide any evidence indicating he attempted to participate in the 2005-2006 open enrollment season. It is unknown when the next open enrollment season may be.
5. In view of the above evidence, there is an insufficient basis for granting the requested relief.
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) AR20140017889
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