IN THE CASE OF:
BOARD DATE: 28 October 2008
DOCKET NUMBER: AR20080009927
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, that his records be corrected to show that he elected Reserve Component (RC) Survivor Benefit Plan (SBP) coverage for spouse only.
2. The applicant states, in effect, that he was not married when he signed his DD Form 1883 (SBP Election Certificate) for RCSBP in 1988, but he remarried in 1990 and was not aware that he had to redo his DD Form 1883. He states that he remarried on 28 April 1990. He also states that his former unit prepared his new paperwork in 2005 and advised him that the DD Form 2656-5 (RCSBP Election Certificate) superseded the DD Form 1883, and that his new DD Form 2656-5 would be sufficient. The applicant states that all of his paperwork was done properly.
3. The applicant provides no documentation 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military service records show that he enlisted in the Army National Guard (ARNG) on 18 November 1973 following a period of prior service in the ARNG from 7 November 1964 to 6 November 1970. He completed basic training and advanced individual training and was awarded the military occupational specialty 91A (Medical Corpsman).
3. The applicants DD Form 4 (Enlistment Contract Armed Forces of the United States) shows the applicants date of birth as 25 August 1947.
4. Commonwealth of Pennsylvania Adjutant General's Office Department of Military Affairs Notification of Eligibility for Retired Pay at Age 60 memorandum dated 7 December 1987 shows that the applicant was notified that he completed the required years of service for eligibility for retired pay at age 60.
5. DD Form 1883 dated 4 March 1988 shows that the applicant was unmarried and elected full immediate SBP coverage for dependent children only.
6. On 17 November 1988 the applicant requested transfer to the U.S. Army Reserve (USAR) Control Group (Retired) upon discharge from the Pennsylvania ARNG.
7. NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) shows that the applicant was honorably separated from the ARNG of Pennsylvania and transferred to the USAR Control Group (Retired Reserve) effective 17 November 1988. The highest rank he achieved was staff sergeant/pay grade E-6.
8. Commonwealth of Pennsylvania Adjutant General's Office Department of Military Affairs Orders 128-043 dated 5 July 1989 show that the applicant was discharged from the ARNG and assigned to the USAR Control Group (Retired) effective 17 November 1988.
9. DD Form 2656 (Data for Payment of Retired Personnel) dated 25 August 2005 shows that the applicant designated his spouse as beneficiary for unpaid retired pay. This form shows 28 April 1990 as his date of marriage. Item 25 (Dependent Children) of this form shows the entry "none." Item 26 (SBP Election Beneficiary Category) of this form shows the entries "I elect coverage for spouse only" and "do not have dependent child(ren)." Item 27 (SBP Election Level of Coverage) of this form shows the entry "I elect coverage to be based on full gross pay without supplemental SBP." The applicant's signature in Item 32 of this form was witnessed by a member of his former unit.
10. DD Form 2656-5 dated 25 August 2005 shows that the applicant selected Option C (Immediate Annuity) to provide an immediate annuity to his spouse and dependent children based on his full retirement pay beginning on the day after the date of his death, whether before or after age 60. The applicant's signature in Item 18 of this form was witnessed by a member of his former unit.
11. U.S. Army Human Resources Command Orders P08-789722 dated 1 August 2007 show that the applicant was retired and placed on the retired list effective 25 August 2007.
12. The applicant reached age 60 on 25 August 2007.
13. Defense Finance and Accounting Service electronic mail correspondence addressed to the Army Review Boards Agency dated 7 August 2008 provides the applicant's finance records RCSBP election information. This correspondence states, in effect, that the applicant was not married and elected child-only RCSBP on 4 March 1988, that the applicant married on 28 April 1990 and had 1 year from that date to add spouse coverage, that the applicant completed DD Form 2656 and DD Form 2656-5 on 25 August 2005 to add spouse coverage, and that the applicant possesses child-only RCSBP coverage.
14. The Uniformed Services Contingency Option Act (USCOA) of 1953 was the first law to permit military members to receive reduced retired pay during their lifetime in return for ensuring that their widows and eligible children would receive an annuity after their death. Public Law 87-381 of 1961, replaced the provisions of the USCOA with the Retired Servicemans Family Protection Plan (RSFPP).
15. Public Law 92-425, enacted 21 September 1972, terminated the RSFPP and created the Survivor Benefit Plan (SBP). Under SBP, each member entitled to retired or retainer pay with eligible dependents is entitled to participate in the program.
16. Public Law 95-397, enacted 30 September 1978, extended coverage under the SBP to members of Reserve Components who would be eligible for Reserve (Non-Regular Service) retired pay except for being under 60 years of age. Under the SBP program, retired members are required to pay monthly premiums in the form of a deduction from their retired pay. In general, these premiums will be deducted throughout a members lifetime unless the retiree terminates or withdraws from annuity coverage, or during any period in which the member does not have an eligible beneficiary.
17. Public Law 95-397 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 members 60th birthday, and (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 members retired pay (costs for option C being the more expensive). Once a member elects either Options B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60.
18. Public Law 99-145, effective 1 March 1986, provided, in pertinent part, that a retired member may change an SBP election under certain circumstances when specific conditions are met. A member who does not have a spouse at the time of initial eligibility may provide SBP for the first spouse acquired after retirement eligibility by electing coverage before the first anniversary of that marriage. Coverage and cost begin on the first anniversary of the marriage.
19. Public Law 105-261, enacted 17 October 1998, established an SBP open enrollment period from 1 March 1999 through 29 February 2000 for members not participating to the fullest possible extent. The effective date is the first day of the month following the month DFAS received the election. This law included a 2-year survival clause for beneficiaries to be eligible for an annuity; if the retiree died within 2 years of the effective date, the premiums were to be refunded to the person who would have been the beneficiary. The retiree must have paid monthly premiums starting on the date of enrollment and a one-time lump sum enrollment premium. Extensive publicity was given in Army Echoes. Army Echoes also warned 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 fairly high, the enrollment premium alone could exceed $50,000.
20. Public Law 108-375, enacted 28 October 2004, established an SBP open enrollment period from 1 October 2005 through 30 September 2006 for members not participating to the fullest possible extent. The effective date is the first day of the month following the month DFAS received the election. This law included a 2-year survival clause 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that his records be corrected to show that he elected RCSBP coverage for spouse only was carefully considered and determined to have merit.
2. The applicant's contention that he properly prepared his election change paperwork in accordance with the assistance and counsel of his former unit appears to be founded as is evidenced by the witness entries on his DD Form 2656 and DD Form 2656-5.
3. Although the applicant did not complete an election certificate within 1 year of his remarriage, his RCSBP coverage elections dated 25 August 2005 clearly show that he intended to provide coverage to his spouse. Therefore, it is reasonable to conclude from this evidence that the applicant would have made those same elections 5 weeks later during the SBP open season conducted 1 October 2005 through 30 September 2006 if he had not been fully confident that the elections made on 25 August 2005 were valid and binding.
4. Based on the foregoing evidence, it is now appropriate to correct the applicant's records to show that he changed his SBP election to immediate annuity coverage for spouse only based on full gross pay without supplemental SBP on 1 October 2005 during the SBP enrollment period from 1 October 2005 through 30 September 2006 and to show that the DFAS received the election in a timely manner so as to establish the effective date as 1 November 2005.
5. The applicant should be advised that the DFAS will audit his original and corrected RCSBP election premium payments and collect any RCSBP premiums due.
BOARD VOTE:
__x_____ ___x____ ____x___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records pertaining to the individual concerned be corrected by showing that he completed the appropriate SBP election change forms on 1 October 2005 to change his SBP election to immediate annuity coverage for spouse only based on full gross pay without supplemental SBP and by showing that the DFAS received the election in a timely manner so as to establish the effective date as 1 November 2005, collecting any associated premiums due.
___________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.
ABCMR Record of Proceedings (cont) AR20080009927
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