BOARD DATE: 25 February 2016 DOCKET NUMBER: AR20150008041 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, in effect, correction of his records to show he elected coverage under the Survivor Benefit Plan (SBP) for his spouse. 2. The applicant states that no one will receive his benefits upon his death. Prior to retirement it was explained to him that it was best to put the children as the first beneficiaries. He understood that upon their 23rd birthdate they would be removed and his wife of thirty years would become the primary beneficiary. If he and his wife had known better in 2001 he would have placed her as the primary beneficiary. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a marriage license, dated 4 August 1984. 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. The applicant retired on 30 September 2001 as a sergeant first class/E-7 after completing 20 years and 17 days of active service. 3. He provides a marriage license that shows he was married to Renee on 31 July 1984. 4. During the processing of this case, DFAS provided records showing a DD Form 2656 (Data for Payment of Retired Personnel), dated 27 June 2001, showing he elected to participate in the SBP with children only coverage. His spouse signed the form confirming her concurrence with his election. This form was also notarized on the same date. 5. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP 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. Elections are made by category, not by name. An election, once made, is permanent and irrevocable except as provided for by law. 6. Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than the maximum spouse coverage. 7. The instructions for completing Section XII of the DD Form 2656 (on pages 3 and 4 of the form) state that Title 10, U.S. Code, section 1448 requires that an otherwise eligible spouse concur if the member declines to elect SBP coverage, elects less than maximum coverage, or elects child only coverage. Therefore, a member with an eligible spouse upon retirement, who elects any combination other than items 26a or 26b and 27a, must obtain the spouse's concurrence in Section XII. A Notary Public must be the witness. In addition, the witness cannot be named beneficiary in Section V, VIII, or IX. Spouse's concurrence must be obtained and dated on or after the date of the member's election, but before the member's retirement/transfer date. DISCUSSION AND CONCLUSIONS: 1. The applicant completed his DD Form 2656 on 27 June 2001 prior to retirement on 1 October 2001. He had until that date to change his SBP election. He made a valid SBP election for children only coverage. His election was an irrevocable election except under circumstances prescribed by law, such as an open season or an event such as gaining a dependent. 2. The applicant contends he was told that his records would be amended to reflect his wife as the beneficiary once his children reached the age of 23. There is no independent evidence that he was improperly advised during his SBP briefing. Further, the SBP election form is self-explanatory. Completion instructions are on pages 3-4 of the DD Form 2656. 3. Congress has authorized open enrollment periods for the SBP in the past. There is no way of knowing whether another open enrollment period will be established in the future; however, in the event that this does occur Army Echoes will announce the beginning of the SBP open enrollment period which would allow the applicant to enroll for spouse coverage. 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) AR20150008041 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008041 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1