IN THE CASE OF:	  

		BOARD DATE:	    27 October 2015

		DOCKET NUMBER:  AR20150003058 


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 the military records to add his spouse, Bobbi Jean, to the Survivor Benefits Plan (SBP). 

2.  The applicant states he was not aware that he had to physically add his current spouse.  He thought because he had added her to the Defense Enrollment Eligibility Reporting System she was automatically added as his dependent.  At the time he was working overseas as a contractor and he had limited days to report back to his duty.  His spouse has been his best friend for over 17 years.  He was very fortunate to marry someone he loves very much.  He would like his spouse to receive any benefits he has if anything should happen to him because she has been his rock.  He has never been happier.

3.  The applicant provides copies of his 2010 License and Certificate of Marriage and a DD Form 2656-6 (SBP Election Change 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 the cases 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.

2.  The applicant's military records show he enlisted in the Regular Army on 4 April 1978.  He served continuously on active duty in various assignments and through several reenlistments until he was retired on 30 April 2000.  His record is void of his SBP election at this time.  However, it appears he elected spouse coverage.

3.  On 1 May 2002, he completed and signed a DD Form 2656-2 (SBP Termination Request), in which he requested voluntary termination of the SBP.  He entered his signature in Section II (Retired Member Identification).  On the same date, his spouse, Rondla, entered her signature in Section IV (Spouse Concurrence) of the form.  His election and her concurrence were notarized on the same day.  The form states under Important Reminders, "Once you discontinue participation, you cannot reenter the Plan.  However, you have up to 30 days after submitting this form to change your mind."

4.  On 1 May 2002, he completed and signed a DD Form 2656 (Data for Payment of Retired Personnel).  Item 22 (Spouse) of the form shows he was married to Rondla on 1 July 1997.

5.  He provided no evidence of the date of his divorce from Rondla or her death.

6.  He and Bobbi Jean were married on 3 June 2010.

7.  On 11 February 2015, he completed and signed a DA Form 2656-6, in which he elected "Spouse Only" SBP coverage for his spouse, Bobbi Jean, based on remarriage.  He entered his signature in Section VII (Member Signature) and his signature was witnessed on the same day.  The form states in Section III (Conditions That Trigger Eligibility to Change Coverage), Item 8:

   a.  Remarriage – a member whose spouse coverage is suspended due to death of the spouse or divorce, has three options upon remarriage:

		(1)  Resume existing level of coverage for my new spouse.

		(2)  Increase existing level of coverage – up to full retired pay.

		(3)  Not resume any SBP coverage for my new spouse.

8.  On 1 October 2015, a staff member of the Defense Finance and Accounting Service (DAFS), SBP section, verified that the applicant's SBP was terminated to no beneficiary effective 22 May 2002.

9.  Public Law 92-425, the SBP, enacted on 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.

10.  Public Law 105-85 established policy that allows an SBP participant to terminate SBP coverage during the one-year period between the second and third anniversary of the commencement of retired pay.  This provision of the law further stipulates that none of the premiums paid will be refunded and no annuity will be payable upon death, and that the participant's covered spouse or former spouse must consent to the withdrawal.  Termination is permanent and participation may not be resumed under any circumstance; future enrollment is barred.  Absent the loss of an eligible beneficiary, the law provides no provisions for terminating SBP coverage prior to the two-year anniversary of commencement of retired pay, or after three years of receiving retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and Rondla were married on 1 July 1997.  He was retired on 30 April 2000.  His record is void of his SBP election at the time.  However, it appears, based on his election in 2002 to terminate the SBP coverage, he elected SBP spousal coverage at the time of his retirement.

2.  His records contain a DD Form 2656-2, dated 1 May 2002, in which he elected termination of his participation in the SBP.  This document also contains the signature of his then spouse, Rondla, in Section IV, in which she concurred with the termination election made by the applicant.  DFAS confirmed his SBP was terminated effective 22 May 2002.

3.  He and Bobbi Jean were married on 3 June 2010.  He completed and signed a DD Form 2656-6 on 11 February 2015 in which he elected "Spouse Only" SBP coverage for her.  

4.  The governing SBP law specified that an SBP termination is permanent and participation may not be resumed under any circumstance; future enrollment is barred.  If a member is married at retirement and terminates coverage, then later remarries, he may not enroll his new spouse.  As a result, given there was no apparent error or injustice related to the applicant's SBP termination request, he does not meet the statutory requirement to enroll his current spouse.  The applicant made a choice and is bound by that choice.
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)                                         AR20150003058





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ABCMR Record of Proceedings (cont)                                         AR20150003058



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