IN THE CASE OF:
BOARD DATE: 30 September 2015
DOCKET NUMBER: AR20150000945
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 enroll in the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that he was married on 8 December 2013 and went to the retirement services office at Fort Rucker, Alabama to enroll his new spouse in the SBP on 19 December 2013. He goes on to state that he understood the counselor to say that he had to wait until his first anniversary but it appears that he meant that he had to enroll before his first anniversary. Accordingly, he requests that he be allowed to enroll his spouse in the SBP.
3. The applicant provides a one-page letter explaining his application and copies of his SBP Election Change Certificate and his marriage license.
CONSIDERATION OF EVIDENCE:
1. The applicant was serving as a construction equipment operator in the Alabama Army National Guard (ALARNG) when he was deployed to Kuwait during the period 20061016 20071008.
2\. On 29 November 2011, he was placed on the Temporary Disability Retired List (TDRL) with a 100% disability rating in the pay grade of E-4. At the time of his placement on the TDRL he indicated that he had no beneficiaries.
3. The applicant married his current spouse in Florida on 8 December 2013 and on 19 December 2013, the applicant completed a DD Form 2656-6 (SBP Election Change Certificate) at the Fort Rucker Retirement Services Office (RSO) electing spouse only at the full retired rate. The form was witnessed by the SBP counselor.
4. He was removed from the TDRL on 10 December 2014 and was permanently retired with a 100% disability rating on 11 December 2014.
5. 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 family members.
6. Public Law 94-496, enacted 14 October 1976, but effective 1 October 1976, reduced the waiting period for a new spouse's eligibility from 2 years to 1 year following post-retirement marriage.
7. 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.
DISCUSSION AND CONCLUSIONS:
1. While the applicant admits that he misunderstood the instructions he received regarding when he could enroll his spouse in the SBP, it is apparent that when he went to the RSO to enroll his spouse it was his intent to do so at the time based on his having completed the election form.
2. It is also noted that the applicant was on the TDRL at the time he attempted to enroll his spouse and was subsequently permanently retired. However, there is no indication that any effort was made to ensure he was properly enrolled in the SBP.
3. Therefore, as a matter of equity, his records should be corrected to show that he made a timely notification to DFAS on 1 January 2014 that he was married and that he made a spouse only SBP election based on full retired pay.
BOARD VOTE:
____X____ ___X_____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant made a timely notification to DFAS on 1 January 2014 that he was married and that he made a spouse only SBP election based on full retired pay.
___________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) AR20150000945
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ABCMR Record of Proceedings (cont) AR20150000945
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