RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 April 2007 DOCKET NUMBER: AR20060013156 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. Gerard W. Schwartz Acting Director Mr. Michael L. Engle Analyst The following members, a quorum, were present: Mr. Kenneth L. Wright Chairperson Ms. LaVerne M. Douglas Member Ms. Ernestine I. Fields Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his military records to add his spouse to his Survivor Benefit Plan (SBP). 2. The applicant states that he did not clearly understand his options at the time of his retirement. He further states that he recently consulted with the Retirement Services Officer (RSO) at McDill Air Force Base and now believes he would be better served if his SBP included his spouse. 3. The applicant provides a copy of his retirement orders and Certificate of Release or Discharge from Active Duty (DD Form 214). CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice which occurred on 1 February 2002, the date he requested the Defense Finance and Accounting Service (DFAS) to correct his SBP coverage from spouse beneficiary to children only beneficiary. The application submitted in this case is dated 5 September 2006. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. On 30 September 2001, the applicant retired from the Regular Army upon completion of 20 years and 7 days of active duty. He attained the rank of major, pay grade O4. 4. DFAS initially enrolled the applicant's spouse and children in SBP at the time of his retirement. 5. Data for Payment of Retired Personnel (DD Form 2656) indicates that at the time of his retirement the applicant elected full SBP coverage for only his children. The applicant's spouse signed and dated this form on 30 July 2001, indicating that she had received information explaining the available options and the effects of each. She concurred with the SBP election made by the applicant. 6. On 1 February 2002, the applicant submitted a written request to DFAS asking that his SBP election be corrected from spouse to children only, as shown on his DD Form 2656, dated 30 July 2001. 7. Congress set a one-year open enrollment period from 1 October 2005 to 30 September 2006, to allow retirees to enroll in the SBP or increase their participation. The law specifies that to be eligible, a person must have been entitled to retired pay on September 30, 2005. During this open enrollment period, participants may elect to enroll a spouse, former spouse, spouse and child, former spouse and child, child only, or a natural person with insurable interest for the first time. Participants may also add a new beneficiary to their existing beneficiary election. Open enrollment elections require completion of a SBP and Reserve Component Survivor Benefit Plan (RCSBP) Open Enrollment Election (DD Form 2656-9). DISCUSSION AND CONCLUSIONS: 1. The applicant retired on 30 September 2001 and elected SBP coverage for only his children. At the time, he was authorized to have also enrolled his spouse; however, he chose not to do so. His spouse concurred. He now contends that he did not understand the effects of the available options and wants to enroll his spouse in addition to his children. 2. At the time of the applicant's request to this Board, the open enrollment period was still available to him. His desire to add his spouse to his SBP coverage was an authorized option. He apparently consulted with the RSO during this open enrollment period and could have applied at that time. For unknown reasons, he did not enroll during this open season. 3. In view of the above, and as a matter of justice, the applicant's records should be corrected to show that he enrolled his spouse on 5 September 2006, during the open enrollment period. 4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 February 2002; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 31 January 2005.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: __KLW__ __LMD__ __EIF___ 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 and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant submitted a DD Form 2656-9 to DFAS on 5 September 2006, to authorize the addition of his spouse to his SBP coverage. _ Kenneth L. Wright_________ CHAIRPERSON INDEX CASE ID AR20060013156 SUFFIX RECON DATE BOARDED 20070410 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION GRANT REVIEW AUTHORITY ISSUES 1. 137.0400 2. 3. 4. 5. 6.