IN THE CASE OF: BOARD DATE: 21 April 2015 DOCKET NUMBER: AR20140013880 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 that he be allowed to participate in the Survivor Benefit Plan (SBP). 2. The applicant states he did not know that he had only 12 months from the date of marriage to submit the request. He completed the form 1 month late. 3. The applicant provides copies of a DD Form 2656-6 (SBP Election Change Certificate) and a Certificate of Marriage. 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 served on active duty from 28 December 1982 through 31 December 2006 and retired as a sergeant first class with 24 years and 3 days of service. 3. The available separation counseling checklist does not indicate whether the applicant received counseling on the provisions and requirements of SBP. 4. The applicant's 1997 reenlistment document shows he had a wife and two children but does not show his wife's name. The marriage license provided shows the applicant married on 7 September 2009. The record contains no evidence of his marital status at the time of his retirement or at any point prior to the 2009 marriage. 5. The DD Form 2655-6 provided, dated 10 November 2010, shows his current coverage was for child only. Item 8 (Marriage) is marked indicating the member did not have a spouse at the time of initial eligibility. He requested conversion to spouse and child coverage listing his wife by name but not listing any children. 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. Surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or as authorized by law. 7. Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and/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 on which that person marries or acquires that dependent child. DISCUSSION AND CONCLUSIONS: 1. The applicant was married on 7 September 2009 and completed the SBP election request 14 months later. 2. The available evidence does not include any evidence to validate the applicant's marital status at the time of his initial SBP election or at any point prior to his 2010 election change request. 3. There is no provision in the SBP law to allow for a late application following marriage or remarriage. 4. Although rare, Congress sometimes authorizes an Open Season for enrollment. If one is authorized by Congress, notification of the particulars will appear in the Army Echoes. 5. Based on the above facts and findings, there is insufficient evidence to demonstrate an error or injustice in the records. 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) AR20140013880 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140013880 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1