BOARD DATE:	  	18 August 2009

		DOCKET NUMBER:  AR20090005516 


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 removing his child as his Reserve Component Survivor Benefit Plan (RCSBP) beneficiary and enrolling him for RCSBP “Spouse Only” coverage for his current wife. 

2.  The applicant states, in effect, that his current spouse should be his RCSBP beneficiary instead of his daughter.  He claims that after he remarried, he provided a copy of his marriage certificate to his unit and assumed they would take the appropriate action to make the required change.  He asks why are there no safeguards in place to notify an individual the 1 year mark is approaching if the necessary paperwork has not been completed to make a change to RCSBP within 1 year of marriage?  He also states that he sent his RCSBP election for "Spouse Only" coverage to the Defense Finance and Accounting Service (DFAS); however, the action was not processed due to the 1-year rule.  This was not his fault because his unit did not follow through.  He further states that he knows he will be blamed for not checking up on the RCSBP action, but it was his unit that failed to follow through and now he is at the Board's mercy. 

3.  The applicant provides the following documents in support of his application:  Marriage Certificate, DD Form 2656 (Data for Payment of Retired Personnel), 
DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate), and 
DD Form 1883 (Survivor Benefit Plan Election Certificate).

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 21 December 1948.  On 8 April 1968, the applicant enlisted in the United States Navy (USN) and entered active duty in that status.  He served until 3 April 1972, at which time he was honorably released from active duty and transferred to the USN Reserve (USNR).  

3.  The applicant's record shows he served in the USNR from 4 April 1972 through 10 January 1973, and again from 6 September 1977 through
6 September 1978.  On 7 September 1978, the applicant enlisted in the United States Army Reserve (USAR) and he continuously served in that status until 
19 December 2008, at which time he was transferred to the Retired Reserve. 

4.  On 30 August 1995, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).  In this notification, he was informed that he had to complete his initial DD Form 1883 within 90 calendar days from the date of receipt of the 20 Year Letter.  

5.  On 9 November 1995, 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 adopted daughter as the beneficiary.  

6.  On 20 June 2001, the applicant married his current spouse.  

7.  On 25 July 2007, the applicant completed a DD Form 2656-6 in which he changed his election to “Spouse Only” immediate coverage.  

8.  On 30 October 2007, during his retirement processing, the FSM completed a DD Form 2656 in which he elected “Spouse Only” SBP coverage.  
9.  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.  

10.  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.  They cannot cancel SBP participation or change options they had in RCSBP- it automatically rolls into SBP coverage.

11.  Public 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006.  This Open Season was extensively publicized in Army Echoes and other Army publications, such as the Army Times to ensure all retirees and actively-serving Soldiers were informed of its existence. 

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was not advised by his unit personnel that he had to make a change to his election within 1 year of being remarried was carefully considered.  However, this factor is not sufficiently mitigating to warrant granting the requested relief.  

2.  The evidence of record confirms the applicant received his Notification of Eligibility for Retired Pay at Age 60 on 30 August 1995.  On 9 November 1995, the applicant submitted his completed DD Form 1883, in which he indicated he was not married and elected the type of coverage he desired as "Children Only." 

3.  The applicant remarried on 20 June 2001, and he contends that he provided a copy of his marriage certificate to his unit and presumed they would make the appropriate change.  He does not contend that he told his unit he wanted to change his SBP election.  There is no evidence to show he attempted to follow up on a request to add spouse coverage to his RCSBP.  The evidence shows he did not attempt to change his SBP coverage until 25 October 2007, more than     6 years after his marriage to his current spouse and after a highly-publicized  SBP Open Season that was in effect from October 2005 through September 2006 ended.  

4.  The applicant is advised that he may make a change to his RCSBP election during an Open Season, as periodically authorized by Congress.  There is no current active Open Season program.  The last Open Season was from October 2005 through September 2006.  Open Seasons are announced in Army Echoes, which the applicant should currently be receiving, and he may obtain additional information on SBP Open Seasons from the Retirement and Annuitant Pay section of the DFAS website http://www.dod.mil/dfas/money/retired/index.htm.  

5.  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.

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)                                         AR20090005516



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ABCMR Record of Proceedings (cont)                                         AR20090005516


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