IN THE CASE OF:	

		BOARD DATE:	1 September 2009

		DOCKET NUMBER:  AR20090003877 


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 by adding “Spouse Only” coverage for his current wife under the Reserve Component Survivor Benefit Plan (RCSBP). 

2.  The applicant states that he was divorced and listed his son as his beneficiary when he submitted his DD Form 1883 (Survivor Benefit Plan Election Certificate). He states that he did not remarry until 1997.  The applicant maintains that he submitted a DD Form 2656 (Data for Payment of Retired Personnel) during his retirement processing and named his son as the beneficiary as he and his wife were separated.  However, since that time, his wife and he have reconciled.  On 30 January 2009, he submitted another DD Form 2656 requesting his wife be added as his sole surviving beneficiary.  He states he was unaware that he had   1 year from the date of marriage to add his wife to his SBP.  Therefore, he was informed that he had to wait until an Open Season to make changes to his SBP.  

3.  The applicant provides a copy of his DD Form 1883 and the first page only of two DD Forms 2656.

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 13 April 1949.  On 8 October 1991, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). 

3.  On 17 November 1991, the applicant completed the DD Form 1883 and in Section II (Marital, Dependency, and Election Status) he confirmed he was not then married and he elected "Children Only" coverage, naming his son as the beneficiary.  

4.  On 15 September 1994, the applicant was separated from the Army National Guard and transferred to the US Army Reserve (USAR) Control Group Reinforcement.  On 16 January 1996, he was discharged from the USAR. 

5.  The applicant submitted the front page of two DD Forms 2656.  One form lists his son as beneficiary (or unpaid retired pay) and his status as single.  The second form lists his wife as the beneficiary (of unpaid retired pay) and his date of marriage as 28 December 1997.  The second page would provide SBP information.

6.  Orders P11-817287 dated 6 November 2008 show the applicant was retired and placed on the retired list on 13 April 2009.

7.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

8.  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.  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.  SBP participation cannot be cancelled and the options cannot be changed.  RCSBP automatically rolls into SBP coverage.


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

10.  Public 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006.  

11.  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 1 year after the date on which that person marries or acquires dependent children.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was unaware of the requirement to make an SBP election within 1 year of the date of marriage is not sufficiently mitigating to warrant granting the requested relief.  

2.  The evidence of record shows the applicant did not attempt to change his SBP coverage until 30 January 2009, more than 11 years after his marriage to his current spouse. 

3.  The applicant is advised that he may make a change to his RCSBP election during the next Open Season, as periodically authorized by Congress.  Open Seasons are announced in Army Echoes, which the applicant should currently be receiving, and/or he can obtain additional information on SBP Open Seasons from the Retirement and Annuitant Pay Section of the Defense Finance and Accounting Service (DFAS) website http://www.dod.mil/dfas/ money/ retired/ index.htm.

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)                                         AR20090003877



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ABCMR Record of Proceedings (cont)                                         AR20090003877



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