IN THE CASE OF:	   

		BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130001875 


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 military records to show he properly elected children-only coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states:

* the Defense Finance and Accounting Service (DFAS) has been overcharging him for SBP insurance
* the bill needs to be adjusted
* the computer shows he is married, but he is not

3.  The applicant provides:

* DD Form 2656 (Data for Payment of Retired Personnel)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 enlisted in the Army National Guard on 28 February 2000 for a period of 8 years.  He was ordered to active duty on 10 February 2003 in support of Operation Enduring Freedom.  On 20 January 2004, he was retired by reason of temporary disability and placed on the Temporary Disability Retired List (TDRL) effective 21 January 2004.

3.  His DD Form 2656, dated 13 July 2004, shows he elected SBP coverage for children-only coverage, full base amount.  This form also shows he was not married at the time.

4.  He was removed from the TDRL on 27 December 2007 and permanently retired.

5.  A U.S. Army Human Resources Command representative for the Defense Enrollment Eligibility Reporting System (DEERS) confirmed the applicant was not married when he retired on 20 January 2004.

6.  DFAS records show his current SBP election is automatic, the default election when a valid election is not received.  He is currently paying spouse premiums.

7.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  It appears that the applicant was automatically enrolled in the SBP for spouse coverage since he did not make an SBP election prior to his disability retirement in January 2004.

2.  The evidence shows he was not married in January 2004 and he elected SBP coverage for children only on 13 July 2004.  His DD Form 2656 shows he was not married at the time.

3.  Since it appears he did not have an eligible spouse for the SBP annuity in January 2004, it would be equitable to correct his records to show he elected SBP coverage for children only prior to his disability retirement on 20 January 2004.

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 he properly and timely elected SBP coverage for children only prior to his disability retirement on 20 January 2004;

	b.  showing his DD Form 2656 was timely received and processed by the appropriate office; and

	c.  refunding any premiums for spouse coverage in excess of children-only coverage previously collected.



      _______ _   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)                                         AR20130001875



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ABCMR Record of Proceedings (cont)                                         AR20130001875



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