RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 December 2007
	DOCKET NUMBER:  AR20070009139 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Michael J. Flynn

Member

Ms. Sherry J. Stone

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) or in the standard SBP for spouse coverage.

2.  The applicant states he was married on 27 October 2001.

3.  The applicant provides a copy of his spouse’s non-driver identification card and military identification card; a copy of a court change of name order for his spouse; and a copy of their marriage license.

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 11 April 1947.  He initially entered a Reserve Component on 1 November 1968.  

3.  The applicant’s notification of eligibility for retired pay (his 20-year letter) is dated 30 October 1996.  On 8 May 1997, he enrolled in the RCSBP for child only coverage, option B, full base coverage.  His DD Form 1883 (Survivor Benefit Plan Election Certificate) shows he was not married at that time.

4.  The applicant married on 27 October 2001.

5.  On 5 May 2005, the applicant applied for retired pay by completing a DD Form 2656 (Data for Payment of Retired Personnel).  On this form, he indicated that he elected spouse only SBP coverage, full base amount.


6.  The applicant was placed on the retired list on 11 April 2007.

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

8.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  

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 one year after the date on which that person marries or acquires that dependent child.  

10.  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 two years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  Extensive publicity was given in Army Echoes, 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.  

11.  On 31 October 2007, the Board analyst asked the applicant if he desired to amend his application to provide for the option of considering a correction of his records to show he enrolled in the SBP during the last Open Season.  He was advised to contact his servicing retirement services officer to calculate the cost, as such a correction could be expensive.  He did not respond within the given time frame.  





DISCUSSION AND CONCLUSIONS:

1.  The applicant was not married when he enrolled in the RCSBP in May 1997.  At that time, he elected to participate in the RCSBP for child only coverage.

2.  The applicant married in October 2001.  By law, he had one year from the date of his marriage to change his RCSBP coverage to spouse and child coverage (his election of child coverage was irrevocable).  There is no evidence and the applicant provides none to show he attempted to enroll in the RCSBP for spouse coverage within one year of his marriage.

3.  The applicant applied for retired pay in May 2005 and attempted to enroll in the standard SBP for spouse only coverage at that time (again, his original election of child coverage was irrevocable).  However, this attempt was made outside of the one-year time frame allowed by law.

4.  The applicant could have enrolled in the RCSBP for spouse coverage in October 2005, during the Open Season that began on 1 October 2005.  It is possible the applicant was not aware that his May 2005 attempt to enroll was not valid.  Unless the Defense Finance and Accounting Service notified him earlier, he would not have received a retiree account statement indicating his request for spouse SBP coverage had not been processed until he turned age 60, almost two years later.  However, he failed to respond to a query from the Board analyst asking if he would like this correction and accept the costs involved.  

5.  Based upon the above, there is insufficient evidence that would warrant granting the relief requested at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __mjf___  __sjs___  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.




__William D. Powers___
          CHAIRPERSON




INDEX

CASE ID
AR20070009139
SUFFIX

RECON

DATE BOARDED
20071211
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
137.04
2.

3.

4.

5.

6.