PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 December 2001                   
	DOCKET NUMBER:   AR2001062732

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Jose A. Martinez		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 that his records be corrected to show he enrolled his spouse in the Survivor Benefit Plan (SBP) within one year of their marriage.

3.  The applicant states that he married in February 2000.  After receiving his June 2000 Retiree Account Statement and noticing his no-longer-dependent child was still listed as his SBP beneficiary and his spouse was not listed, he called the Defense Finance and Accounting Service (DFAS) to have his daughter taken off and to have spouse coverage added.  He was told he would have to wait for an Open Season to make the change.  He waited until receiving his September 2000 Retiree Account Statement and again asked about an Open Season.  He was again told he had to wait.  After being persistent, he was told to go ahead and send a copy of his marriage certificate and they would have it on file and to also fill out a beneficiary card (apparently beneficiary for unpaid pay and allowances).  His next Retiree Account Statement showed his spouse as his beneficiary but used her maiden name and listed her relationship as “other.”  He called DFAS again, told DFAS of the errors, and inquired again about an Open Season.  He was told that he would be notified when an Open Season was declared.  In April 2001, he called again inquiring about an Open Season.  He was told to mail another copy of his marriage certificate and a letter stating he would like his daughter removed and his wife added.  He did so only to receive a letter in return stating his wife could not be added as he had not notified DFAS within one year of his marriage.  Supporting evidence is as listed on the enclosure to the DD Form 149.

4.  The applicant’s military records show that he enlisted in the Regular Army on 26 October 1976.  He retired on 1 November 1996.  At that time he elected SBP coverage for children only.  His Record of Emergency Data, DD Form 93, dated  4 April 1995 shows that he was divorced and his Servicemen’s Group Live Insurance Election and Certificate, SGLV-8286, of the same date shows that his current spouse, listed as “friend,” was the principal beneficiary.  

5.  The applicant married his current spouse on 14 February 2000.

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.  The term “dependent child” means a person who is unmarried; is under 18 years of age or at least 18 but under 22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self support because of a mental or physical incapacity existing before the person’s 18th birthday, or is the child of a person to whom the Plan applies including an adopted child, a step or foster child or a recognized natural child who lived with that person in a regular parent-child relationship.  

7.  Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married upon becoming eligible to participate in the SBP but who later marries 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 of the marriage. 

8.  Conversation with DFAS – Cleveland Center on 6 December 2001 indicates that DFAS automatically retains child SBP coverage until the youngest child is 22 years old.  The member must submit a written request to remove a child who is under 22 and no longer meets the statutory eligibility requirements.  

CONCLUSIONS:

1.  The Board believes that the applicant was improperly counseled concerning the actions he needed to take to remove his daughter and to add his spouse as his SBP beneficiary.  It appears that several times prior to the first anniversary of his remarriage he was misinformed that he had to wait for an Open Season to add his spouse as his SBP beneficiary.  It appears he was never informed that he needed to submit a written request to add his spouse and to remove his daughter until April 2001, after the one year window to add spouse coverage had passed.  

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that on 15 May 2000 the applicant requested, in writing, that his SBP coverage be changed to spouse and child coverage and that his daughter be removed as an eligible beneficiary.  

BOARD VOTE:  

__inw___  __tl____  __jam___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001061732	
SUFFIX		
RECON		
DATE BOARDED	20011218	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.