IN THE CASE OF:	  

		BOARD DATE:	    10 November 2010

		DOCKET NUMBER:  AR20100012197 


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 show he elected not to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states he was not married when he turned age 60 and applied for retired pay.  He had no qualifying dependents at the time and has not had any since retiring.  He contends that because no spouse was listed on his application for retired pay, the Defense Finance and Accounting Service (DFAS) automatically enrolled him in SBP with spouse-only coverage.

3.  The applicant provides copies of his divorce decree and agreement of dissolution, dated 8 July 1997; DFAS letter, dated 5 March 2009; and Retiree Account Statement.

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.  On 29 August 1988, the Tennessee Army National Guard notified the applicant of his eligibility for retired pay at age 60 (20-year letter).  There is no evidence showing he made a Reserve Component SBP election at this time.

3.  On 2 January 1994, the applicant was married.

4.  Orders 152-24, 125th U.S. Army Reserve Command, dated 1 June 1995, transferred the applicant to the Retired Reserve due to attaining the maximum years of years.

5.  On 8 July 1997, the applicant was divorced.  Neither the divorce decree nor the dissolution agreement discusses SBP.

6.  On 6 December 2005, the applicant attained 60 years of age.

7.  His Retiree Account Statement ,effective 2 December 2008, indicates he is paying SBP premiums for spouse-only coverage.

8.  On 5 March 2009, DFAS informed the applicant by letter that he had been automatically enrolled in SBP for spouse-only coverage at the full base amount because he had not made an election to decline.

9.  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 dependents.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he elected not to participate in the SBP.

2.  The available evidence clearly shows he was not married at the time of his retirement.

3.  DFAS informed the applicant in March 2009 that he had been automatically enrolled in SBP for spouse-only coverage because he had not indicated on his application for retired pay that he wanted to decline coverage.

4.  The applicant's retiree account statement shows a deduction for SBP premiums for spouse-only coverage.
5.  In view of the above and as a matter of equity it is appropriate to grant the requested relief.

BOARD VOTE:

__X____  __X_____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

	a.  showing that he was unmarried at the time of his retirement and had made a timely election not to participate in SBP and

	b.  refunding to him all SBP premiums deducted from his 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)                                         AR20100012197



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ABCMR Record of Proceedings (cont)                                         AR20100012197



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