IN THE CASE OF:	

		BOARD DATE:	23 June 2009  

		DOCKET NUMBER:  AR20090003898 


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 he submitted a DD Form 2656-3 (Survivor Benefit Plan [SBP] and Reserve Component Survivor Benefit Plan [RCSBP] Open Enrollment Election) during the 1999 open enrollment period following his marriage to his current spouse.

2.  The applicant states his wife and stepdaughter should be included on his SBP.  He states that he submitted an SBP election during the open enrollment period in 1999 and that he mailed his election on 23 November 1999.  He states, in effect, that he was not counseled on the need to follow-up, or to tell if the election was in effect; and that he was unaware that his spouse was supposed to be listed on his Retiree Account Statement as his SBP beneficiary.

3.  The applicant provides a copy of a DD Form 2656-3, dated 23 November 1999, and of his 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 military records show he was born on 6 November 1943.  He enlisted in the Army National Guard 29 September 1965.  He completed the required training and he was awarded military occupational specialty (MOS)   31E (radio repairman).  He was discharged on 30 June 1968 for the purpose     of accepting a commission.  He was commissioned as a second lieutenant on     1 July 1968 and subsequently he was promoted to major on 12 January 1983.

3.  On 31 January 1986, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60, commonly known as the 20-Year Letter.  On 10 February 1986, he completed a DD Form 1883 (Survivor Benefit Plan Election Certificate).
The election certificate shows that the applicant was not married at the time.  He elected children only, based on full retired pay, and Option C (immediate coverage).

4.  The applicant's NGB [National Guard Bureau] Form 22 (Report of Separation and Record of Service) shows he was separated from the Army National Guard and assigned to the Retired Reserve, effective 1 November 1990 after completing 25 years, 1 month, and 8 days of military service.  

5.  The applicant provides a marriage certificate which shows he married his current spouse on 2 April 1998.

6.  The applicant provided a copy of a DD Form 2656-3, dated 23 November 1999, which shows an election of spouse and child beneficiary category based on the full amount of retired pay with immediate coverage.  There is no evidence that the election form was mailed to or received by the Human Resources Command, St. Louis (HRC-STL).

7.  The applicant's records contain a DD Form 2656 (Data for Payment of Retired Personnel), dated 1 July 2003, which shows election of spouse and child beneficiary coverage based on full gross pay without supplemental SBP.

8.  A staff of the Board contacted the Transition and Separations Branch at
HRC-STL to confirm whether the applicant's records contained a DD Form   2656-3 executed within 1 year of his marriage to his current spouse or during the
1999 Open Season.  The HRC-STL official stated that his records only contained the 1986 SBP election.

9.  The applicant was placed on the retired list on 6 November 2003.

10.  Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP.  It provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name.  An election, once made, is permanent and irrevocable except as provided for by law.

11.  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 at age 60; (B) provide an annuity beginning on the 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.

12.  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.  

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

14.  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.  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.  

15.  Retiree Account Statements are sent by the Defense Finance and Accounting Service (DFAS) to retirees each time there is a change in the retiree's retirement pay.  This normally happens at least once a year to reflect the cost of living increase awarded to retirees.  Each statement showed the current SBP 
coverage elected by the retiree or the fact that no SBP election is reflected.  Therefore, the applicant would have been receiving a Retiree Account Statement, along with the DFAS, Military Retired Pay Newsletter, since his retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his wife and step-daughter should be included on his SBP, that he mailed an SBP election during the 1999 open season, and that, in effect, he was unaware that his SBP coverage or lack thereof was shown on his Retiree Account Statements.

2.  The applicant's statement that he was not counseled on the need to follow-up or to tell if the election was in effect is confusing.  However, even if he was not properly counseled, it can be presumed that a retiree interested in providing SBP coverage for his newly-acquired dependents would seek out current SBP information.  Such information would have been readily available through sources such as his Retiree Account Statement, DFAS, Military Retired Pay Newsletter, Army Echoes Newsletter, and the internet.

3.  Processing by DFAS of a valid SBP election submitted by the applicant would have generated a deduction for premiums from his retired pay and reflected on his Retiree Account Statement or the converse of no premium deduction in the event the retiree elects not to participate in the SBP.

4.  Evidence of record shows that the applicant was not married when he received his 20-year letter on 31 January 1986.  On 10 February 1986, he elected child only beneficiary coverage based on full gross retired pay with immediate coverage (Option C) in the SBP.  His election was an irrevocable election except under circumstances prescribed by law, such as an open season or an event such as gaining a dependent.

5.  Following marriage to his current spouse on 2 April 1998, he had three periods of opportunity to change his election to add his spouse to his already-elected child beneficiary status.  The first period being within the first year following the event of marriage, the second being the open season period of 1 March 1999 through 29 February 2000, and the third being the open season period of 1 October 2005 through 30 September 2006, which would have allowed him to change his 1986 SBP election of children only to spouse and children.  There is no evidence to confirm that he submitted an SBP election during any of the three windows of opportunity or that the HRC-STL received such an election.

6.  Available personnel records show he made an election on 1 July 2003 in conjunction with his retired pay application.  However, the applicant already had a valid SBP election of children only in force (dated 10 February 1986) and there was no event authorizing him to change his election at the time he applied for retired pay.  As such, the election for spouse and child only made at the time of his retired pay application would not have been valid.

7.  The only SBP election that can be verified as valid and received at the appropriate office within the prescribed time frame is the applicant's DD Form 1883, dated 10 February 1986, electing children only coverage.  It is noted that while this children only coverage (and related SBP costs) may have been suspended when there was no longer an eligible child, it should have resumed when an eligible child was later acquired.  Therefore, his stepdaughter and any other dependent child(ren) he may have or acquire must be enrolled in the SBP based on full gross pay with an immediate annuity and payment of any retroactive SBP costs due from the date of dependent child eligibility forward.

8.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

9.  Regrettably, in view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090003898



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003898


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1