IN THE CASE OF:	

		BOARD DATE:	28 April 2009  

		DOCKET NUMBER:  AR20080018032 


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 made application to change his Reserve Component Survivor Benefit Plan (RCSBP) election within one year of his marriage.

2.  The applicant states that he was not married at the time of his RCSBP election and was not aware that he must make a desired change in his RCSBP election within one year of his marriage.

3.  The applicant provides a copy of a marriage certificate in support of this 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 date of birth is shown as 4 September 1948.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) on 18 January 1968.  The applicant enlisted in the Maryland Army National Guard (MDARNG) on
12 February 1977.  The highest rank he attained while serving in the ARNG was master sergeant (MSG)/pay grade E-8.

3.  The applicant received his notification of eligibility for retired pay (20-year letter) on 2 March 1992.  A completed DD Form 1883 (SBP Election Certificate), signed by the applicant on 10 April 1992, shows he elected children only coverage (item 8c), annuity based on full amount of retired pay (item 9a), and Option C (immediate coverage) (item 9c).  The applicant placed an "X" in the "No" block of item 6 (Are you married?), indicating that he was not married at that time.

4.  The Certificate of Marriage provided by the applicant shows he married on 
16 June 1995.

5.  The applicant was discharged from the MDARNG and assigned to the USAR Reserve Control Group (Retired Reserve) on 1 March 1996 after completing more than 26 years of service.

6.  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) defer or decline to make an SBP election until beginning to draw retired pay age 60; (B) provide an annuity beginning on retiree's 60th birthday (if death occurs before 60), or upon retiree's death (if age 60 or older upon death); (C) provide an annuity beginning on the day after retiree's death, regardless of retiree's age at death.  Once a member elects either Option B or C in any category of coverage, that election is irrevocable.
 
7.  Title 10, U.S. Code, section 1448(5) provides that a person who is not married upon becoming eligible to participate in the SBP but who later marries 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.

8.  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 authorized 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.

9.  The National Defense Authorization Act for Fiscal Year 2005 established an SBP Open Enrollment period to be conducted 1 October 2005 to 30 September 2006.  Extensive publicity was given in Army Echoes.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that he was not aware he needed to make an election to enroll his spouse in the RCSBP within one year of their marriage.

2.  The applicant was not married at the time he received his notification of eligibility for retired pay memorandum and enrolled in the RCSBP for children only coverage.  He married three years later.

3.  As a senior noncommissioned officer, the applicant should have been aware that having acquired new spouse was a major change in his life that should have entailed research into its financial implications.  Since the applicant had completed an RCSBP election only three years earlier, it can be presumed that he was aware of the significance of this plan.  The applicant was also assigned to a unit which could have provided him such information.  Lastly, the applicant could have elected spouse RCSBP coverage during the two SBP Open Season periods following his marriage in 1995.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.  He should closely watch read editions of Army Echoes that may announce the beginning of another SBP Open Season.

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)                                         AR20080018032



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ABCMR Record of Proceedings (cont)                                         AR20080018032



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