RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 June 2008
	DOCKET NUMBER:  AR20080000841 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 record be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for Spouse Only, Full Coverage, Option C.

2.  The applicant states, in effect, that during his retirement processing he was misinformed that he would automatically be enrolled in the RCSBP for the first two years following his retirement with his spouse reflected as the sole beneficiary, and that thereafter he could request to be disenrolled from the program.  He also states that the Defense Finance and Service (DFAS) deducted RCSBP premiums from his first retirement check and then stopped.  He further states that he now requests that his records be corrected to show he enrolled in the RCSBP and elected Spouse Only immediate coverage. 

3.  The applicant provides a Designation of Beneficiary Information (DFAS 5890) and a Nevada Marriage Certificate in support of his 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's record shows he continuously served in the United States Army Reserve (USAR) in various statuses from 9 January 1967 through 
8 January 1994, at which time he was transferred to the Retired Reserve.

3.  On 19 August 1989, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).  

4.  On 27 November 1989, subsequent to receiving his 20-Year Letter, the applicant completed a Survivor Benefit Plan Election Certificate (DD Form 1883). In Section II (Marital, Dependency, and Election Status), he checked the box indicating he was not married, and elected full SBP coverage for "Children Only" under Option B (Age 60).

5.  United States Army Reserve Personnel Command (ARPERSCOM), St. Louis, Orders Number C-04-417627, dated 25 April 1994, assigned the applicant to the Retired Reserve.  

6.  On 22 May 1996, the applicant married his current spouse.

7.  On 20 March 2006, during his retirement processing, the applicant completed a Data for Payment of Retired Personnel (DD Form 2656).  Section IX (Survivor Benefit Plan Election) shows he elected not to participate in the RCSBP.  Section XI shows his spouse concurred with his election.

8.  ARPERSCOM Orders P10-792642, dated 12 October 2007, directed the applicant's placement on the Retired List on 19 October 2007, at age 60, and he was authorized to receive retired pay. 

9.  The applicant's record contains a Designation of Beneficiary Information 
(DD Form 2894), dated 3 November 2007 and (DFAS-CL 5890/2), dated 
17 December 2007.  These documents show that the applicant elected his spouse at 100 percent share as his beneficiary to receive any retired pay (arrears) still owed to him upon his death.

10.  Public Law 92-425 (SBP) was enacted on 21 September 1972, and it provided that military members could elect to have their retired pay reduced to provide an annuity after death to surviving dependents.  It required a 2-year waiting period for the new spouse eligibility following a post-retirement marriage. Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 
1 year.

11.  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 RCSBP 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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay.  Once a member elects either Options B or C in any category of coverage, that election is irrevocable, except as provided for by law.  Option B and C participants do not make a new SBP election at age 60.  

12.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP coverage during the one-year period between the second and third anniversary of the commencement of retired pay.  This provision of the law further stipulates that none of the premiums paid will be refunded and no annuity will be payable upon death, and that the participant's covered spouse or former spouse must consent to the withdrawal.  Termination is permanent and participation may not be resumed under any circumstance; future enrollment is barred.  Absent the loss of an eligible beneficiary, the law provides no provisions for terminating SBP coverage prior to the two-year anniversary of commencement of retired pay, or after three years of receiving retired pay.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show that he is enrolled in the RCSBP and that he elected "Spouse Only" coverage was carefully considered.  However, by law and regulation, a member who marries after he has made his RCSBP election has one year after the date of his marriage to elect "Spouse" coverage.  

2.  The evidence of record confirms that upon receiving his 20-Year Letter in 1989, the applicant was not married and elected full "Children Only" RCSBP coverage under Option B (Age 60).  It also shows that he was married on 22 May 1996, and there is no indication that he attempted to elect SBP coverage for his spouse within a year of this marriage.  Further, on 20 March 2006, prior to his eligibility to receive retired pay and his placement on the Retired List, the applicant completed a DD Form 2656, in which he elected not to participate in the SBP, and his spouse concurred with this election.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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


ABCMR Record of Proceedings (cont)                                         AR20080000841



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
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