IN THE CASE OF:	  

		BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20140019254 


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 add his wife to his Survivor Benefit Plan (SBP).

2.  The applicant states:

* he spoke with a technician at the Defense Finance and Accounting Services (DFAS), Retired Pay Branch
* he was instructed to provide them with a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate) and a memorandum explaining his request
* he was told that once he provided the information he would be approved for SBP enrollment
* he provided the requested information and DFAS denied his enrollment due to the statute of limitations
* he was told that his mail was not delivered to his address in China

3.  The applicant provides:

* DD Form 2656-6
* Request for SBP Coverage, dated 14 August 2014
* Notarial Certificates, dated 26 May 2008
* SBP Election Certificate Form 1883, dated 30 January 2002
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 17 October 2001
* Orders P01-800050, 4 January 2008 (Retirement Orders)
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.  With prior service in the Regular Army, the applicant enlisted in the Army National Guard (ARNG) on 11 August 1987.

3.  On 17 October 2001, the applicant was issued a 20-Year Letter notifying him that having completed the required years of service, he would be eligible for retired pay upon application at age 60.  It lists a Survivor Benefit Plan Summary as an enclosure.

4.  On 1 January 2002, the applicant was released from the ARNG and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

5.  On 30 January 2002, the applicant completed a DD Form 1883 indicating that he was not married and electing not to participate in the SBP.  He provides a copy of a DD Form 1883, undated, which shows he elected not to participate in the SBP, he was not married, and he had no dependent children.

6.  On 4 October 2002, the applicant enlisted in the USAR for 5 years.  He retired on 31 December 2007.  His retirement orders "strongly recommended" that he contact a Retirement Services Office (RSO) and provided a link to Army Echoes and a list of RSOs.

7.  The applicant married on 22 May 2008.

8.  He provides a copy of his SBP Enrollment Application, dated 14 August 2014, which shows he was denied SBP coverage because he failed to notify DFAS of his marriage prior to his first year anniversary in order for her to be eligible.

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 family members.

10.  In addition to enrollment opportunities at retirement, and upon newly acquiring family members, Congress periodically authorizes open season enrollment periods.  These open seasons allow retirees not participating or not fully participating to enroll in SBP.

11.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married 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's contentions have been noted.  His supporting evidence was considered.

2.  By law, a member who is not married upon obtaining eligibility to participate in the SBP may elect to participate in the SBP to cover a newly acquired spouse.  Such an election must be writing, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries.  He had up to 1 year after he married to enroll in the SBP and he failed to do so.

3.  The 20-Year Letter issued to the applicant in 2001 lists a Survivor Benefit Plan Summary as an enclosure.  His 4 January 2008 retirement orders "strongly recommended" that he contact a Retirement Services Office (RSO) and provided a link to Army Echoes and a list of RSOs.  Contrary to the applicant's assertion, the government did not fail him.  He was provided information and resources, but did not himself make inquiry until 6 years after his marriage.  While he states he had no SBP information, he submitted a DD Form 1883 accurately capturing his decision to defer his election not to participate in the SBP.

4.  Congress has authorized open enrollment periods for the SBP in the past.  There is no way of knowing whether another open enrollment period will be established in the future.  However, the applicant is advised to read Army Echoes, the Army bulletin published, and now online, to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.  If Congress establishes another SBP Open Enrollment Season, Army Echoes may announce the beginning of the SBP open enrollment period.

5.  There is no evidence of error or injustice in this case.  As such, there is no basis for granting the applicant's 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 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)                                         AR20140019254



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ABCMR Record of Proceedings (cont)                                         AR20140019254



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