IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150011568 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ___x ____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150011568 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150011568 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 records to show he elected Survivor Benefit Plan (SBP) coverage for his spouse within 1 year of his marriage. 2. The applicant states he asked the Veterans Affairs Office in Fort Wayne, Indiana, about getting his wife into the Defense Enrollment and Eligibility Reporting System (DEERS) system and survivor benefits. He was told that all he had to do was enroll in DEERS and his wife would automatically be enrolled in the SBP. 3. The applicant provides copies of– * his U. S. Uniformed Services Identification Card * his spouse's U. S. Uniformed Services Identification and Privilege Card * their completed marriage license application 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 retired as a Regular Army master sergeant/E-8 effective 1 January 2001. 3. There is no available evidence showing any SBP election was made at his retirement. 4. He provides a completed Marriage License Application, dated 20 August 2001, showing he married on 25 August 2001. REFERENCES: 1. 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. 2. Title 10, U.S. Code, section 1448(a)(5) (participation by person marrying after retirement, etc.). a. (A) Election to participate in plan. A person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan. b. (B) Manner and time of election. 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 a dependent child. DISCUSSION: 1. The applicant states he was not married at the time of his retirement in January 2001. 2. He married on 25 August 2001. He states he was told by the Veterans Affairs Office in Fort Wayne, Indiana, that all he had to do was enroll in DEERS and his spouse would automatically be enrolled in SBP. 3. There is no available evidence showing he notified the Defense Finance and Accounting Service within one year of his marriage and submitted a formal request for enrollment in the SBP. 4. There is no available evidence to substantiate he was told enrollment in DEERS would cause automatic enrollment in SBP. Additionally, there is no evidence of the applicant making any SBP premium payments. Had he been enrolled in SBP payment of premiums would have been required. 5. The applicant's apparent willingness to create a large initial debt to cover past, missed premiums is noted. While this is indicative of truthfulness and supports the applicant's claims, this, by itself, would not warrant relief. 6. By law, a member 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 one year after the date on which that person marries or acquires that dependent child. 6. The applicant may still have an opportunity to enroll his spouse in this program during an Open Season. Open Seasons are authorized by Congress. The last Open Season was in 2005. It is unknown when the next Open Season will be. Because he did not submit his request within one year of his marriage and because there is no Open Season at the present time, the applicant does not meet the criteria established by law to enroll his spouse in the SBP. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011568 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011568 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2