IN THE CASE OF:	  

		BOARD DATE:	 16 June 2015 

		DOCKET NUMBER:  AR20140018128 


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 record to show he enrolled his spouse in the Survivor Benefit Plan (SBP) in a timely manner.

2.  The applicant states he received retirement counseling at Wright Patterson Air Force Base (WPAFB), OH, on 16 July 2001.  At that time he was informed the SBP did not apply to him because he was not married and he had no dependent children.  Consequently, he was not required or permitted to attend the SBP portion of the retirement counseling.

   a.  On 26 July 2001, he was counseled at Fort Knox, KY, and he completed a DD From 2656 (Data for Payment of Retired Personnel).  His review of section IX (SBP Election), item 26 (Beneficiary Categories), indicated to him that he was not eligible for SBP because he did not have any of the listed eligible beneficiaries.

   b.  He states that he was divorced and single at the time, and the SBP was never explained to him.  He assumed that if/when he remarried, his spouse would be automatically eligible to receive SBP benefits once she was enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and issued a military dependent identification (ID) card.

   c.  On 5 June 2010, he and his spouse went to the Processing Center, WPAFB, and provided officials with their marriage certificate and her personal identification information.  She was enrolled in DEERS and issued a military dependent ID card.  In response to him asking if he needed to do anything else, he was told that his spouse was completely enrolled in the military system and eligible to receive all benefits as a military spouse.
   
   d.  Neither he nor his spouse was provided counseling or information about the SBP.  In researching SBP he discovered the law requires that the spouse must concur with any SBP election that provides less than the full spouse SBP coverage; however, this never happened in his case.

   e.  On 4 May 2012, he and his spouse took his step-daughter to WPAFB to enroll her in DEERS and get her a dependent ID card.  At that time he informed an official that his Retiree Account Statement was still showing "No SBP Election is Reflected on Your Account."  He was referred to another office.  He informed the official that he was told his spouse was automatically enrolled in the SBP when she was enrolled in DEERS and issued an ID card in June 2010.  The official replied that he had 12 months from the date of marriage to enroll his spouse into SBP, that he could no longer enroll her, and that he would have to wait for the next "SBP Open Enrollment" that is offered every so often.

   f.  In May and June 2012, he contacted several offices, including U.S. Military Retired Pay at the Defense Finance and Accounting Service (DFAS).  He was consistently told the timeframe for him to enroll his spouse in SBP had expired.

   g.  On 20 December 2012, in response to an "Ask Retired Pay" inquiry, a DFAS official informed him that he was enrolled in SBP and could add his spouse by sending in the supporting documents and information.  However, after he sent in the documents he was told otherwise.

   h.  He does not believe any of the officials he dealt with deliberately provided him incorrect information about SBP enrollment.  He denies knowing anything about having to enroll in SBP "other than just getting/bringing in our marriage certificate and get her an ID card and into DEERS."

   i.  He states that he is willing to pay arrears and interest back to the date of his marriage (16 April 2010) or 4 June 2010 when his spouse enrolled in DEERS.

3.  The applicant provides copies of:

* two self-authored statements (summarized above)
* DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members)
* DD Form 2656 (Data for Payment of Retired Personnel)
* Certificate of Marriage

* four letters/documents of correspondence with DFAS
* DD Form 2656-6 (SBP Election Change Certificate)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born in July 1956.

2.  After having had prior honorable enlisted service in the U.S. Air Force (USAF) Reserve and USAF Regular Service that began on 30 May 1974, the applicant enlisted in the Army National Guard of the United States on 9 November 1979.

3.  He attained the rank of sergeant first class/pay grade E-7 on 1 June 1990.

4.  On 11 March 1996, the applicant was notified that his eligibility for retired pay had been established upon attaining age 60 (a 20-Year letter).

5.  Orders 153-142 issued by the State of Ohio, Adjutant General's Department, Columbus, OH, dated 8 August 2001, reassigned the applicant to the U.S. Army Transition Point, Fort Knox, KY, on 23 July 2001, for separation processing.  The orders also released him from active duty on 30 September 2001 and placed him on the Retired List effective 1 October 2001.  He was credited with completing 
22 years, 4 months, and 3 days of service for voluntary retirement and 27 years, 4 months, and 1 day for basic pay purposes.

6.  On 26 July 2001, the applicant completed a DD Form 2656 that shows in:

   a.  Section V (Designation of Beneficiaries for Unpaid Retired Pay) he entered "David A. D--------, Jr. (Son), 100%."

   b.  Section VI (Federal Income Tax Withholding Information) he indicated he was "Single."

   c.  Section VIII (Dependency Information) he entered "N/A" [Not Applicable] in the blocks for spouse and dependent children.

   d.  Section IX (SBP Election), item 26 (Beneficiary Categories):

* no entry for "I elect coverage for my former spouse"
* he elected not to participate in SBP because he did not have eligible dependents under the plan

   e.  Section XII (Certification) shows, in pertinent part, "Also, I have been counseled that I can terminate SBP participation, with my spouse's written concurrence, within one year after the second anniversary of commencement of retired pay.  However, if I exercise my option to terminate the SBP, future participation is barred."   It also shows the applicant and a witness signed the document on 26 July 2001.

7.  In support of his application, the applicant provides the following documents:

   a.  A DD Form 2648 that shows the applicant was offered and accepted  pre-separation counseling at Cincinnati, OH, on 16 July 2001.  Section V (Remarks), item 26 (Retiree Activities:  Retirees must keep pay and correspondence address current to receive USAF News for Retired Personnel and notices from DFAS), shows the applicant placed his initials indicating "Yes."  It also shows the applicant and the transition counselor placed their signatures on the document.

   b.  State of Florida, Marriage Record, that shows the applicant and Suzette R. F___ married on 16 April 2010.

   c.  A letter from the applicant to DFAS, dated 1 June 2012, requesting that his spouse be added to his SBP.

   d.  Two email messages, dated 20 December 2012, subject:  Ask Retired Pay, that show:

* the applicant requested information about SBP open enrollment and expressed his desire to add his spouse to SBP as soon as possible
* the DFAS customer service representative informed the applicant he was enrolled in SBP so he could add his spouse by providing a copy of their marriage certificate and her personal identification information

   e.  A letter from the applicant to DFAS, dated 20 December 2012, requesting that his spouse be added to his SBP.

   f.  A facsimile coversheet from the applicant to DFAS, dated 21 December 2012, that shows he transmitted documents to add his souse to his SPB.

   g.  A DD Form 2656-6 completed by the applicant on 3 October 2014, requesting a change in his SBP from no coverage to spouse (Suzette R.) and children coverage based on full retired pay.  It shows they were married on 
16 April 2010; however, the applicant did not list any dependent children on the form.

8.  In connection with the processing of this case, DFAS was asked to verify information relevant to the applicant's SBP election, coverage, and participation.  A DFAS official provided, in pertinent part, two letters to the applicant from DFAS, Retired and Annuitant Pay, London, KY, that show:

* on 5 July 2012, he was informed that his letter, dated 11 May 2012, was received; however his request for SBP could not be processed because it exceeded the 1-year time period from the date of his marriage
* on 4 January 2013, he was informed that his correspondence was received on 21 December 2012; there is no automatic coverage for any spouse and/or children newly acquired after retirement; and his request for SBP could not be processed because it exceeded the 1-year time period from the date of his marriage

9.  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.  Retiring members and spouses were to be informed of the SBP options and effects.

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.  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.  Since April 2007, every issue contained the warning or a similarly-worded warning, "Remember:  You are responsible for updating your retired pay file information at DFAS-CL (use mailing address below) within 1 year of the event if you marry, remarry, have a child, are widowed or divorced and need to make or update a Survivor Benefit Plan (SBP) election."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show he enrolled his current spouse in the SBP in a timely manner because he:

* was informed that the SBP did not apply to him because he was not married and he had no dependent children
* was not required or permitted to attend the SBP portion of the retirement counseling
* enrolled his spouse in DEERS in a timely manner and was informed that she would be automatically eligible to receive SBP benefits
* was improperly informed by DFAS that he was enrolled in SBP and could add his spouse
* is willing to pay all arrears for enrollment of his spouse in SBP

2.  The sincerity of the applicant's comments with respect to the information he did or did not receive about the SBP is not in dispute.

3.  The applicant was serving as a senior noncommissioned officer and he had completed more than 22 years of qualifying service for retirement purposes at the time of his retirement counseling and separation processing.

   a.  The evidence of record shows the applicant was single (divorced) and he had no dependent children when he submitted his Data for Payment of Retired Personnel on 26 July 2001.  The DD Form 2656 he signed on that date shows he acknowledged he had been counseled on at least some portion of the SBP.  Therefore, his contention that the SBP did not apply to him and/or that he was not required or permitted (emphasis added) to attend the SBP portion of the retirement counseling is at odds with the evidence of record.

   c.  On 16 July 2001, he acknowledged with his initials and signature that it was his responsibility as a retiree to keep his pay and correspondence address current to receive notices from DFAS.

   d.  He was transferred to the Retired List on 1 October 2001.

   e.  The evidence of record shows that, beginning in April 2007, every issue of the Army bulletin Army Echoes informed retirees that they are responsible for updating their retired pay file by sending information to DFAS within 1 year of the event if they marry, remarry, have a child, are widowed or divorced and need to make or update an SBP election.

4.  The applicant remarried on 16 April 2010.  The evidence of record shows he acted in a timely manner to enroll his spouse in DEERS and obtain a military dependent ID card.  However, the evidence of record also shows the first time the applicant submitted a request to DFAS requesting that his spouse be added to his SBP was on 11 May 2012.

   a.  On 5 July 2012, he was informed that his request could not be processed because it exceeded the 1-year time period from the date of the marriage.


   b.  It is noted that a DFAS customer service representative subsequently informed the applicant he was enrolled in SBP so he could add his spouse
(by providing a copy of their marriage certificate and other personal information).  However, the evidence of record suggests that the DFAS response was made without the benefit of knowledge of the date of the applicant's marriage.

   c.  In any event, on 4 January 2012, after receiving the required documents, DFAS subsequently informed the applicant (again) that his request could not be processed because it exceeded the 1-year time period from the date of marriage.

5.  There is no evidence the applicant submitted an application to change his SBP coverage to add Spouse coverage within 1 year of the date of his marriage, nor is there independent evidence showing he was misadvised by any Army official.

6.  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.  Further, DEERS enrollment only provides access to medical facilities and other on-post privileges/benefits.  It does not force enrollment into otherwise optional programs.

7.  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.

8.  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.


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)                                         AR20140018128



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ABCMR Record of Proceedings (cont)                                         AR20140018128



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