IN THE CASE OF:	  

		BOARD DATE:	       22 January 2009

		DOCKET NUMBER:  AR20080013572 


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, correction of his records to show that within one year of his marriage, he changed his Reserve Components Survivor Benefit Plan (RCSBP) election from children only coverage to spouse only coverage.

2.  The applicant states that he recalls shortly after his marriage in 1989, he submitted a request to change his RCSBP election from children only to spouse only coverage.  He further states that no one told him that there were additional requirements to make sure his wife was the recipient of his RCSBP.    

3.  In support of his application, the applicant provides copies of his Survivor Benefit Plan (SBP) Election Certificate (DD Form 1883), dated 4 August 1986; Data for Payment of Retired Personnel (DD Form 2656), dated 10 February 2000; Summary of Retired Pay Account, dated 24 August 2000; Retiree Account Statement, dated 24 August 2000; and his marriage license issued on 9 June 1989 showing he was married on 24 June 1989.

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.  On 27 November 1962, the applicant enlisted in the Tennessee Army National Guard.   He served through a series of reenlistments and attained the rank of first sergeant, pay grade E-8.  

3.  On 6 June 1986, the Chief, Army National Guard Personnel Center, notified the applicant of his eligibility for retired pay at age 60 (20-Year Letter).  This letter indicates that an SBP summary was attached.

4.  On 4 August 1986, the applicant submitted DD Form 1883 requesting full coverage for his two dependent children born on 14 December 1965 and on 
11 January 1967.  He indicated that he was not married.  He elected Option C for immediate coverage.

5.  The applicant's marriage license shows that he was married on 24 June 1989.

6.  A DD Form 2656, dated 10 February 2000, shows that the applicant requested full SBP coverage for spouse only.  He indicated that he did not have any dependent children.

7.  The applicant was 60 years of age on 20 August 2000.

8.  The Defense Finance and Accounting Service (DFAS) Summary of Retired Pay Account, dated 24 August 2000, shows that he was retired effective 
20 August 2000 in the pay grade of E-8.  It further shows his RCSBP election as children only coverage.

9.  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.  If the member dies before reaching age 60, premiums are deducted from the annuity.



10.  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.  

11.  Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992.  Extensive publicity was given in Army Echoes and other Army publications.  Public Law 101-510, enacted 5 November 1990, delayed the start of the Open Season to     1 April 1992 through 31 March 1993.

12.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  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. 

13.  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.  Extensive publicity of this Open Season was given in Army Echoes.  Army Echoes informed retirees that any category could be enrolled for the first time and that the six options available included spouse coverage and former spouse coverage.

14.  The SBP provides that the "Child(ren) Only " option applies to children under 18 years of age, unless full time student and unmarried, then under 22 years of age.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be permitted to change his RCSBP election from children only to spouse only coverage.

2.  Records show that at the time of his receipt of his 20-Year Letter, he was not married but did have two dependent children.   Therefore, he elected full coverage for his dependents. 



3.  On 24 June 1989, the applicant married.  The applicant had one year from the date of his marriage to change his RCSBP election.  He failed to do so.  On 
10 February 2000, the applicant submitted a request to change his RCSBP election to spouse only coverage.  This request was more than 10 years late.  It appears that this request was not processed.

4.  There have been three open seasons since the applicant's marriage in 1989, during which he had the opportunity to provide SBP coverage for his spouse.  The applicant's next opportunity to provide SBP coverage for his spouse will come during the next open season, if and when one is declared.

5.  There is no error or injustice.  Therefore, the applicant's request should be denied.  

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
      
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)                                         AR20080013572



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080013572



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1