IN THE CASE OF: BOARD DATE: 23 February 2016 DOCKET NUMBER: AR20150005921 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 correction of his records to show he elected Survivor Benefit Plan (SBP) spouse coverage instead of coverage for a natural interest person (NIP). 2. The applicant states: a. He wants to change his SBP beneficiary from his mother to his wife. b. The reason is due to a lack of information. He was never told to contact the SBP office. He thought the military registration of his wife when they were married on 26 November 1976 was sufficient. His annual retirement statement lists his wife and son as beneficiaries. He had no idea until recently. 3. The applicant provides: * self-authored letter to the Army Review Boards Agency Case Management Division, dated 30 March 2015 * marriage license * retiree account statement 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 was born on 16 October 1947. He enlisted in the Regular Army on 29 April 1968 and he served as a light weapons infantryman in Vietnam. He retired by reason of temporary disability and was placed on the Temporary Disability Retired List (TDRL) effective 19 March 1970. He was removed from the TDRL effective 31 July 1971 and permanently retired (80 percent disability). 3. The applicant contends he elected SBP coverage for his mother as an NIP on 1 October 1973. 4. He married on 26 November 1976. 5. His records contain a DD Form 2656-6 (SBP Election Change Certificate), dated 3 November 2014, which shows: * his current coverage is insurable interest * he is requesting a change in coverage based on marriage * he elected SBP coverage for spouse only 6. He also provided a retiree account statement prepared on 31 December 2014 showing: a. his SBP premium cost; b. he had paid at least 360 months toward his paid up Reserve Component/ SBP coverage; and c. once he turns age 70, his costs will be terminated but his coverage will remain active. 7. He provided a letter to the Army Review Boards Agency Case Management Division, dated 30 March 2015, wherein he states: a. He has been contributing to his SBP account since SBP began. b. He was injured in Vietnam and medically retired from the Army on 18 March 1970. This was before SBP was implemented. When he was contacted by the U.S. Government about this new annuity program, he elected to join and listed his mother as his beneficiary effective 1 October 1973. He was not married at the time. c. On 26 November 1976, he married. Shortly afterward, he registered his wife for military benefits. They had no idea that contacting the SBP office was necessary. d. Annually, he receives a retirement account statement which indicates that his wife and son are the beneficiaries. It also lists the SBP costs and annuity amount. After all these years of paying into the system, he had no idea that his mother was still listed in the official paperwork. e. He has contributed to the SBP for well over 40 years. This oversight was just discovered in November 2014 and he would have taken care of this many years ago if he knew. 8. 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. 9. Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and 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. 10. Public Law 103-337, enacted 5 October 1994, allowed SBP insurable interest participants whose beneficiary is not their former spouse to voluntarily terminate their participation in the SBP. Any such termination shall be made by a participant by the submission to the Secretary concerned of a written request to discontinue participation in the SBP. Such participation shall be discontinued effective on the first day of the first month following the month in which the request is received. Once participation is discontinued, benefits may not be paid in conjunction with the earlier participation in the SBP and premiums paid may not be refunded. DISCUSSION AND CONCLUSIONS: 1. The applicant contends, in effect, that his military records should be corrected to show he elected SBP coverage for his spouse within 1 year of their marriage. 2. It appears he made a valid election in 1973 to provide coverage for his mother as an NIP with an insurable interest. He was not married at the time. 3. In 1976 when he married, he had a 1-year period in which to submit an SBP election to provide coverage for his spouse. Unfortunately, there is no available evidence showing he attempted to submit an election or that such an election was received or processed within a year of his marriage. There is evidence showing he submitted a DD Form 2656-6 in 2014; however, that submission was after the 1-year time limit required by law. 4. Nevertheless, since it was so early in the SBP Program, it's more likely than not that he didn't understand and didn't receive good information at that time. His records simply show he had SBP coverage. Given the circumstances surrounding this case, it would be equitable to correct his records to show he requested SBP coverage for his spouse in a timely manner. 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 showing the applicant made a written request to change his SBP election to spouse coverage on 1 December 1976 and the request was accepted and processed by the appropriate office in a timely manner. __________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) AR20150005921 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005921 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1