BOARD DATE:  9 April 2020

		DOCKET NUMBER:  AR20190007340


APPLICANT REQUESTS:   

*	election of Survivor Benefit Plan (SBP) coverage for his new spouse 
*	personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Applicant’s Letter dated 20 April 2019

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code, section 1552(b); however, the ABCMR conducted a substantive review of 
this case and determined it is in the interest of justice to excuse the applicant's failure to 
timely file.

2.  The applicant states he is requesting a waiver to the one year time limit for spouse 
enrollment under the Survivor Benefit Plan (SBP) enrollment.  He had no prior 
knowledge of SBP.  He also didn’t receive a separation briefings regarding SBP upon 
retirement 37 years ago.  He was deployed with a government agency during the 1 year 
after the date on which he remarried.

3.  The applicant provides a letter that states he would like to formally request a waiver 
to the one year time limit for spouse enrollment under the SBP.  After a 24 year period 
as a divorcee, on 15 January 2014, he married his present wife, XXX.  They would 
have definitely enrolled in the program if they had known.  He has served our country 
diligently and want to rest assured that his wife will benefit from all his honorable 
service.  If required, they are willing to retroactively pay the monthly plan fees back to 
the first year of their marriage.
	
4.  A review of the applicant’s service record shows:

	a.  DD Form 4 (Enlistment Contract) was not available for review.

	b.  His DD Form 214 (Certificate of Release or Discharge from Active Duty), reflects 
that he was retired from active duty on 28 February 1982 in the rank of Master Sergeant 
(MSG).  He was transferred to the USAR Control Group (Retired Reserve).  He 
completed 5 years and 12 days of net active service this period with 16 years, 4 months 
and 22 days of total prior active service.

	c.  Neither the SBP election form or supporting documentation were provided by the 
applicant for review.
	
5.  By regulation (AR 15-185), an applicant is not entitled to a hearing before the 
ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of 
the ABCMR.

6.  By law, a spouse becomes an eligible spouse beneficiary under SBP upon the one 
year anniversary of marriage and, if so eligible, becomes entitled to the spouse annuity 
upon the death of the retired Soldier.

BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found that 
relief was / was not warranted.

2.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  

2.  


		  
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.




REFERENCES:

1.  Title 10, United States 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 ABCMR to excuse an applicant's 
failure to timely file within the 3 year statute of limitations if the Army Board for 
Correction of Military Records (ABCMR) determines it would be in the interest of justice 
to do so.

2.  Title 10, USC, section 1448, establishes the SBP.  It essentially states, in pertinent 
part, that eligible participants include persons who would be eligible for reserve-
component retired pay but for the fact that they are under 60 years of age.  Section 
1148(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.

3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins 
its consideration of each case with the presumption of administrative regularity, which is 
that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence 
or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right 
to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal 
hearing whenever justice requires.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20190007340


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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