IN THE CASE OF: BOARD DATE: 14 April 2016 DOCKET NUMBER: AR20150008545 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 record to show he enrolled his spouse in the Survivor Benefit Plan (SBP) in a timely manner. 2. The applicant states, in effect, that he married Linda D. B___ on 22 November 2012. However, officials at the Retired and Annuitant Pay, Defense Finance and Accounting Service (DFAS), denied his request to add his spouse to his SBP. 3. The applicant provides copies of his: * Certificate of Marriage * DD Form 2894 (Designation of Beneficiary Information) * four letters of correspondence (between the applicant and DFAS) CONSIDERATION OF EVIDENCE: 1. The applicant was born in September 1952. 2. He enlisted in the U.S. Army Reserve (USAR) on 13 December 1971. 3. A State of Nebraska, Lancaster County, Office of the County Judge, Marriage License, shows the applicant married Ruth A. F___ on 12 February 1972. 4. The applicant continued to serve in the USAR and he attained the rank of master sergeant/pay grade E-8 on 1 May 1995. 5. On 19 June 1992, the applicant was notified that his eligibility for retired pay had been established upon attaining age 60 (a 20-Year letter). 6. A DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA)) shows the applicant recertified his entitlement to BAQ/VHA. Item 10 (Dependents/Sharers) shows he listed, in pertinent part, his spouse (Ruth A. D___). It also shows the applicant and a certifying officer placed their signatures on the form on 24 March 1996. 7. Headquarters, 95th Division (Institutional Training), Oklahoma City, OK, Orders 272-1, dated 29 September 1997, reassigned the applicant to the USAR Control Group (Retired Reserve) effective 30 September 1997. 8. A review of the applicant's military personnel records failed to reveal evidence pertaining to a divorce from his spouse (Ruth A. D___). This review also failed to reveal any evidence of a completed DD Form 2656 (Data for Payment of Retired Personnel) or a DD Form 2656-5 (Reserve Component SBP Election Certificate). 9. A further review of the applicant's military personnel record maintained in the U.S. Army Human Resources Command, Integrated Web System, in pertinent part, shows inquiries made by the applicant and the responses to his inquiries. A review of the comments pertaining to SBP-related matters shows on: * 30 April 2004, "explained that his soon to be ex-wife would be entitled to ID [identification card] when he reaches age 60 if she does not have employee sponsored health care." * 5 June 2006, "Soldier requesting help with SBP packet. Answered Soldier's questions. [Applicant] divorce[d] and remarried." * 7 January 2014, "[Applicant] calling from … because he recently got married and was thinking of adding his wife to his SBP. [Applicant] does not have the election in place right now, but wants to find out how much this will cost prior to signing up for it. [Customer Care Representative] CCR provided the [applicant] the number to DFAS Retirement Section…. to discuss pricing. CCR informed [him] to fill out a DD Form 2656-5 and [that] the form will need to be submitted to DFAS." 10. U.S. Army Human Resources Command (HRC), Fort Knox, KY, Orders P04-943714, dated 5 April 2012, placed the applicant on the Retired List on 21 September 2012 and authorized him retired pay. The Additional Instructions show, in pertinent part, "It is strongly recommended that you contact your support Retirement Services Office (RSO) and make an appointment for a retirement briefing and the issue of new [identification] cards." 11. In support of his application, the applicant provides the following documents: a. State of Iowa, Certification of Vital Record, County Record, Certificate of Marriage, that shows the applicant married Linda D. B___ on 22 November 2012. b. A DD Form 2894 that shows the applicant designated his spouse, Linda D. D___, as his beneficiary for his Army retired pay. The form does not show the applicant's signature or a date. c. A letter from the applicant to DFAS, dated 20 January 2014, requesting that his spouse (Linda D. D___) be added as his designated beneficiary for the SBP annuity. It shows he attached a copy of his marriage certificate to the letter. d. A letter from DFAS Retired and Annuitant Pay, London, KY, to the applicant, dated 13 February 2014, that explained to the applicant that when a retiree is not married at retirement and gains a spouse after retirement, a retiree has one year from the marriage date to make an election. Since the date of his marriage was 22 November 2012 and first notice was received at DFAS on 22 January 2014, his spouse could not be added to his SBP. He was also advised that, if an Open Season election period is enacted, his spouse may be added at that time. e. A letter from the applicant to DFAS, undated, in response to the DFAS letter. He stated that he had 25 years of Army service and he was not aware of any timeframe rules related to adding a new spouse to SBP. He noted that he requested his spouse be added to his SBP within about 1 year and 2 months of the date of their marriage. He requested an exception to the 1-year policy and/or review by a higher authority. f. A letter from DFAS Retired and Annuitant Pay to the applicant, dated 24 April 2014, that explained to him that DFAS was unable to process his request and that any correction of his military records must be initiated through the Army Board for Correction of Military Records. 12. In connection with the processing of this case, DFAS was asked to verify information relevant to the applicant's SBP election, coverage, and participation. A DFAS official reported that the applicant is not currently contributing to SBP. 13. 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. Retiring members and spouses were to be informed of the SBP options and effects. 14. 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. 15. Army Echoes is the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. Since April 2007, every issue contained the warning or a similarly-worded warning, "Remember: You are responsible for updating your retired pay file information at DFAS-CL (use mailing address below) within 1 year of the event if you marry, remarry, have a child, are widowed or divorced and need to make or update a Survivor Benefit Plan (SBP) election." DISCUSSION AND CONCLUSIONS: 1. The applicant contends his record should be corrected to show he enrolled his current spouse in the SBP in a timely manner because he: * was not aware of any timeframe rules related to adding a new spouse to SBP * he requested his spouse be added to his SBP within 1 year and 2 months of the date of their marriage * requests an exception to the 1-year policy 2. The sincerity of the applicant's comments with respect to the information he did or did not receive about the SBP is not in dispute. 3. The applicant was serving as a senior noncommissioned officer and he had completed more than 25 years of qualifying service for retirement purposes at the time of his retirement counseling and separation processing. a. The date of the applicant's divorce from his first spouse (Ruth A.) is not available. It is also unclear whether any divorce decree required him to provide former spouse coverage or if he married between his divorce from Ruth A. and his marriage to Linda D. b. The applicant transferred to the USAR Control Group (Retired Reserve) effective 30 September 1997. c. Based on the evidence of record, it appears that the applicant has never enrolled in SBP. d. He was transferred to the Retired List on 21 September 2012. e. He married his current spouse on 22 November 2012. f. The evidence of record shows that, beginning in April 2007, every issue of the Army bulletin Army Echoes informed retirees that they are responsible for updating their retired pay file by sending information to DFAS within 1 year of the event if they marry, remarry, have a child, are widowed or divorced and need to make or update an SBP election. 4. The evidence of record shows the first time the applicant requested help with his SBP was on 5 June 2006 when he had apparently divorced and remarried. On 7 January 2014, he again contacted HRC and inquired into adding his current spouse to the SBP. At that time, he was advised to complete a DD Form 2656-5 and submit it to DFAS. a. On 20 January 2014, he submitted a letter with his marriage certificate to DFAS requesting that his spouse be added to his SBP. b. On 13 February 2014, he was informed that his request could not be processed because it exceeded the 1-year time period from the date of the marriage. 5. There is no evidence the applicant submitted an application to change his SBP coverage to add Spouse coverage within 1 year of the date of his marriage, nor is there independent evidence showing he was misadvised by any Army official. 6. The governing law is clear in that a person who is not married, but who later marries, may elect to participate in the SBP with spouse coverage. 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. The applicant failed to make such an election within 1 year after the date on which he was married. 7. Regrettably, in view of the foregoing, the applicant is not entitled to correction of his record to show he enrolled in the SBP with spouse coverage. 8. The applicant is advised that, on occasion, the U.S. Congress enacts into law an SBP Open Season. For example, Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. It required the retiree to pay monthly premiums starting on the date of enrollment and a buy-in premium covering all costs that would have been paid for the election if it had been made at the first opportunity to do so. Therefore, the applicant is encouraged to monitor military media and/or websites in the event an SBP Open Season is enacted into law in the future. 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) AR20150008545 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008545 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1