BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20160001795 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 BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20160001795 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. BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20160001795 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, enrollment in the Survivor Benefit Plan (SBP) for spouse coverage. 2.  The applicant states he rushed his retirement and did not take the appropriate amount of time to analyze his dependent benefit plan. He accepted a government job and he did not understand the consequences of making such a quick decision. He now realizes his decision will place his spouse in hardship should he pass away. 3.  The applicant provides: * DD Form 2656 (Data for Payment of Retired Personnel) * a memorandum * DD Form 214 (Certificate of Release or Discharge from Active Duty) Worksheet * Orders 332-1303 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.  He and his spouse were married on 1 November 1974. 3.  Having 4 years, 7 months, and 27 days prior service, the applicant enlisted in the Regular Army on 28 July 1988. 4.  He served through multiple reenlistments in a variety of stateside or overseas assignments culminating in the rank/grade of chief warrant officer five (CW5)/W-5. 5.  In connection with his pending retirement, he completed a DD Form 2656 on 6 December 2012. He indicated he was married and had no dependent children. He elected not to participate in the SBP. The Fort Jackson, SC, Retirement Services Officer counseled both him and his spouse and his spouse concurred with his election not to participate in the SBP. 6.  He retired on 28 February 2013 and he was placed on the Retired List in the rank/grade of CW5/W-5 on 1 March 2013. 7.  He provided a DD Form 2656, dated 28 December 2015, that shows his request for a change to his coverage from "no coverage" to "spouse" coverage based on the full amount of his retired pay. REFERENCES: 1.  Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided military members on active duty an opportunity to elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances. This law also provides that every member having a spouse and/or child(ren), who retires/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. 2.  Title 10, U.S. Code, section 1448, mandates a notice to a spouse if a member elected not to participate in the SBP. The statute also provides for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declines to participate in the SBP prior to receiving retired pay. The statute also requires written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount. 3.  Periodically, Congress authorizes an open enrollment season to allow retirees certain changes to their SBP participation or nonparticipation. The last open enrollment season was in 2005. Extensive publicity is provided in Army Echoes (a periodic newsletter that informs retired Soldiers, surviving spouses, and their families about changes to their benefits and entitlements, developments within the Army, and how they can continue to support the Army). Army Echoes also warns that for a retiree with a high number of years since first being able to enroll a beneficiary in the SBP and whose retired pay was high, the enrollment premium alone could be substantial. DISCUSSION: 1.  The evidence of record shows that prior to his retirement, the applicant was provided an opportunity to make an SBP election and he willingly and in writing elected not to participate in the SBP. His spouse, having been fully informed and counseled concerning the options available under the SBP for a survivor annuity, signed the form indicating she concurred with his election. 2.  His December 2012 original SBP election to decline participation is all-encompassing and covers not only the dependents he had at retirement, but also any future dependents he may acquire after retirement. As a result of his original declination of SBP, he forfeited his right to participate in this program except during an open enrollment season. There is neither an error nor an injustice. 3.  Congress periodically authorizes open enrollment seasons to allow retirees an opportunity to make certain changes to their SBP participation or nonparticipation. The last open enrollment season was in 2005. The ABCMR has no influence over when an open enrollment season may occur. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001795 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001795 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2