PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 August 2002
	DOCKET NUMBER:   AR2002072535

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Lana E. McGlynn		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
records
	Exhibit B - Military Personnel Records (including
advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his records be corrected to show he requested spouse coverage under the Survivor Benefit Plan (SBP) in a timely manner.

3.  The applicant states that he was told he could not enroll his spouse because he had declined spouse coverage at the time he retired.  However, he was not married when he retired.  When he tried to enroll her, someone told him telephonically that he had to wait seven years to enroll her in order to protect him.

4.  The applicant’s military records show that he enlisted in the Regular Army on 17 July 1979.  Effective 28 April 1990, he was placed on the Temporary Disability Retired List.  At that time, he elected to participate in the SBP for children only coverage, reduced base amount.  His Data for Payment of Retired Army Personnel, DA Form 4240, shows that he was single.

5.  The applicant married on 13 October 1999.  Apparently around September 2001, he attempted to enroll his spouse in the SBP.  By letter dated                   10 September 2001, the Defense Finance and Accounting Service informing him that, “Because you chose to decline spouse SBP coverage when you retired, SBP coverage cannot be implemented for your new spouse.  Also, to cover a spouse under the SBP, notification must have been received within one year of the marriage.”

6.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Changes in SBP options are not authorized except in specific instances or authorized by law.

7.  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 one year after the date on which that person marries or acquires that dependent child.  

CONCLUSIONS:

1.  It appears the applicant may have been erroneously counseled concerning changing his SBP coverage upon a change in his marital status.  It would be equitable to grant the relief requested and correct his records to show he made a written request to change his SBP election to spouse and child within one year of his marriage.

2.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant made a written request on 1 November 1999 to change his SBP to spouse and children coverage, reduced base amount and that his request was received and processed by the appropriate office in a timely manner.

2.  That the applicant be advised the Defense Finance and Accounting Service will be instructed to collect any SBP costs due.

BOARD VOTE:  

__FNE__  __ TSK  _  __LEM __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Fred N. Eichorn  _
		   CHAIRPERSON

INDEX

CASE ID	AR2002072535	
SUFFIX		
RECON		
DATE BOARDED	2002/08/13	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.