IN THE CASE OF: BOARD DATE: 22 February 2012 DOCKET NUMBER: AR20110013902 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 a change of his Survivor Benefit Plan (SBP) coverage from "children" to "spouse only" coverage. 2. The applicant states he initially misunderstood the requirement to wait 13 months before his SBP would become effective when he spoke with Kxxxx over 12 months ago. He contends that he had the DD Form 2656-6 (SBP Election Change Certificate) ready to mail; however, after speaking with Nxxxx, he found he had surpassed the 13-month requirement by 27 days and he was no longer eligible to change his SBP election. 3. The applicant provides: * Divorce Decree * Certificate of Marriage * DD Form 2656-6, dated 1 July 2011 * DD Form 2894 (Designation of Beneficiary Information), dated 25 July 2010 CONSIDERATION OF EVIDENCE: 1. He married his former spouse on 17 March 1984 and divorced her on 8 December 2000. 2. Having prior service, he enlisted in the Regular Army on 31 January 1991 and served on active duty continuously until he was medically retired on 3 September 2007 due to temporary disability. 3. On an unknown date, he elected "child only" SBP coverage. An email from the Defense Finance and Accounting Service (DFAS) confirms he made an SBP election in the Fall of 2007 upon retirement. 4. He married his current wife on 3 June 2010. 5. He submitted the following: * An empty envelope from DFAS, addressed to the applicant and postmarked 21 June 2010 * A DD Form 2894, which shows he designated his current spouse as the sole beneficiary to receive any unpaid retired pay upon his death, on 25 July 2010 * A DD Form 2656-6, which shows he elected to change his SBP election from "child only" to "spouse only," signed and notarized on 1 July 2011 6. Item 8 of his DD Form 2656-6 clearly states "A member, who does not have a spouse at the time of initial eligibility, may provide SBP for the first spouse acquired after retirement by electing coverage before the first anniversary of that marriage." This document is signed and authenticated by the applicant. 7. Public Law 92-425, enacted on 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. An election, once made, is irrevocable. 8. Public Law 94-496, enacted 14 October 1976, established a waiting period of 1 year following post-retirement marriage. The legislative history of the SBP shows that Congress’ purpose in requiring a 1-year waiting period was to prevent sham marriages and to prevent spouses who become widows/widowers of SBP participants only by virtue of a short-term marriage after retirement from automatically receiving an annuity. 9. 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 1 year after the date in which that person marries or acquires that dependent child. DISCUSSION AND CONCLUSIONS: 1. The applicant requests a change of his SBP coverage to show he elected "spouse only" coverage within 1 year of marriage. 2. The evidence shows he initially elected "child only" coverage at the time of his retirement because he was divorced. He remarried on 3 June 2010 and on 1 July 2011 he attempted to enroll in SBP for "spouse only" coverage. 3. He contends that he misunderstood the requirement to enroll within 1 year of marriage; however, his DD Form 2656-6 clearly explains the requirement to elect "spouse coverage" before the first anniversary of marriage. 4. Public Law 94-496 established a waiting period of 1 year for vesting following post-retirement marriage to prevent spouses from automatically receiving an annuity from a short term or sham marriage. This is different from Title 10 USC 1448(a)(5) which states a person who later marries may make a written election to the Secretary concerned within one year of the marriage. 5. The evidence shows he attempted to change his election shortly after his first anniversary which would indicate his intent was to comply with the SBP election guidelines as he understood them. However, because his initial "child only" election is irrevocable, he can only add "spouse coverage." 6. As a matter of equity, it would be appropriate to correct his records to show he added spouse coverage and to collect all additional premiums from the applicant based on the date of marriage, 3 June 2010, for such coverage. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____x___ ____x___ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing he elected to add spouse SBP coverage, on 3 June 2010; and b. having the Defense and Finance Accounting Service collect all premiums due. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correcting his record to show he elected spouse only coverage. _______ _ __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) AR20110013902 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110013902 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1