IN THE CASE OF:	

		BOARD DATE:	11June 2009

		DOCKET NUMBER:  AR20090002862 


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 correction of his records to reflect his wife as the sole beneficiary of his Survivor Benefit Plan (SBP) coverage.

2.  The applicant states that prior to his August 1999 discharge from the Army National Guard (ARNG) he completed a DD Form 2656 (Data For Payment of Retired Personnel) on 9 November 1998 electing SBP coverage for his spouse and was informed by his officials at his unit that his spouse would be covered.  Several years later he checked with his unit officials and was again assured that everything was in order.  However, in August 2008 when he checked with a retirement services officer at the Wisconsin ARNG (WIARNG) on the status of his SBP coverage, he was informed that his spouse was not covered.  He concludes that he does not know where the error was made, but at some point, someone dropped the ball and he now finds his spouse with no SBP coverage.

3.  The applicant provides a copy of the DD Form 2656, dated 9 November 1998, in support of his request.

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 was born on 5 August 1939.  He enlisted in the WIARNG on 12 March 1957 and remained in that component until 11 March 1963 when he was honorably discharged in the rank/grade of specialist five/E-5 and transferred to the U.S. Army Reserve (USAR) on 12 March 1963.  He was honorably discharged from the USAR on 28 February 1965.

3.  The applicant's record also shows he enlisted again in the WIARNG on 18 December 1973 and subsequently executed a series of extensions and/or reenlistments.

4.  On 28 January 1988, the National Guard Bureau, Falls Church, VA, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 
This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

5.  On 26 February 1988, the applicant completed DD Form 1883 (Survivor Benefit Plan Certificate).  He indicated that he was not married but had dependent children and listed his daughter Angela born on 29 May 1970 as his dependent.  He further elected "children only" coverage, full amount, option C (immediate coverage), under the Reserve Component SBP (RCSBP).  He was further counseled by an SBP counselor and signed a statement acknowledging the following:

I, [Applicant], acknowledge that I received information on the Uniformed Services Survivor Benefit Plan elections available to me on my retirement and the effects of these elections.  I understand these elections as explained to me.  I am aware that after I retire, the election I make before retirement is, in general, permanent and irrevocable by me.

6.  On 23 July 1988, the applicant married his spouse Gloria.

7.  On 1 October 1990, Office of the Adjutant General, WIARNG, Madison, WI, published Orders 195-023, reassigning the applicant to the Retired Reserve effective 1 September 1990.

8.  On 9 November 1998, the applicant completed a DD Form 2656 and elected SBP coverage for his spouse based on the full gross pay without supplemental SBP.  It is unclear if this form was forwarded to the Defense Finance and Accounting Service (DFAS).

9.  On 27 May 1999, U.S. Army Human Resources Command, St. Louis, MO, published Orders P-05-303521 placing the applicant on the Retired List in his retired rank of first sergeant effective 5 August 1999, the date he turned 60.

10.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

11.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 (and eligible to participate in the SBP), to provide an annuity for their survivors should they die before reaching age 60.  Three options were 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; or 

	c.  Elect that a beneficiary receive an annuity immediately upon their death if before age 60.

12.  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.  They cannot cancel SBP participation or change options they had in RCSBP – the options automatically roll into SBP coverage.  

13.  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.  

14.  The Defense Finance and Accounting Service interprets the first part of Title 10, U. S. Code, section 1448(a)(5) to mean, “…who is not married OR has no dependent child….”
15.  Public Law 101-189, enacted 29 November 1989, established an Open Season to run 1 October 1991 (deferred to 1 April 1992)-30 September 1992.  It provided that the effective date of election shall be the first day of the month following the month DFAS receives the election.  Extensive publicity was given in Army Echoes.

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

17.  The National Defense Authorization Act for Fiscal Year 2005 established an Open Season to be conducted 1 October 2005 to 30 September 2006.  The retiree must pay 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to reflect his wife as the sole beneficiary of his SBP coverage.

2.  The evidence of record shows that upon receipt of his 20-year letter, the applicant executed an SBP Election Certificate, electing immediate coverage under Option C for "children only coverage."  He did not have a spouse at the time.  He and his spouse were married on 23 July 1988.  The law permitted him to add his spouse within 1 year of their marriage.  He did not do so.

3.  The applicant completed a DD Form 2656 electing spouse coverage on 9 November 1998; however, there was no Open Season in effect at the time he completed the DD Form 2656.  The next available Open Seasons during which the applicant could have enrolled with his spouse as beneficiary were 1 October 1991-30 September 1992, 1 March 1999-29 February 2000, and 1 October 2005-30 September 2006.  He did not do so.  Therefore, there is no error or injustice in his record.

4.  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.
5.  While the available evidence is insufficient for awarding the applicant relief in this case, this in no way affects his right to seek professional advice from a retirement services officer or any other SBP professional regarding the true nature of the cost associated with enrollment during an open season which includes monthly premiums starting on the date of enrollment and a substantial 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.  If after such knowledge or learning of the true cost associated with such enrollment the applicant still desires correction of his records, he may request reconsideration of his case based on equity.

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)                                         AR20090002862



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ABCMR Record of Proceedings (cont)                                         AR20090002862



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