BOARD DATE:	  22 September 2009

		DOCKET NUMBER:  AR20090008296 


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 Survivor Plan Benefit (SBP) election be changed from coverage for his son to coverage for his wife. 

2.  The applicant states that he married his spouse on 26 March 2005 and did not know he had to change his SBP coverage within one year of his marriage prior to completing his retirement packet because no one advised him of this requirement. 

3.  The applicant provides a copy of a signed/notarized DD Form 2656-6 (Survivor Benefit Plan Election Coverage Certificate), dated 29 April 2009, and a copy of a signed/not-notarized DD Form 2656 (Data for Payment of Retired Personnel), dated 16 October 2007, 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 12 August 1948 and enlisted in the Regular Army for a period of 3 years on 17 January 1967.  He held military occupational specialty 11B (Light Weapons Infantryman) and was honorably released from active duty on 16 January 1970 and transferred to the U.S. Army Reserve (USAR) Control Group for completion of his Reserve obligation.

3.  The applicant's record also shows he enlisted in the USAR on 26 June 1977 and subsequently served through a series of reenlistments and/or extensions in the USAR.  He attained the rank/grade of master sergeant (MSG)/E-8.

4.  On 12 December 1991, the U.S. Army Reserve Personnel Center, St. Louis, MO (now known as the U.S. Army Human Resources Command or USAHRC-STL) 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 13 February 1992, the applicant completed DD Form 1883 (Survivor Benefit Plan Certificate).  He indicated that he was not married but had dependent children and listed his son Ali, born on 8 July 1973, as his dependent. He further elected "children only" coverage, full amount, option C (immediate coverage), under the Reserve Component SBP (RCSBP).  

6.  On 26 March 2005, the applicant married his spouse P_ _ _ _ _ _.

7.  On 16 October 2007, 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).

8.  On 10 July 2008, USAHRC-STL published Orders P-07-809852 placing the applicant on the Retired List in his retired rank of MSG/E-8, effective 12 August 2008, the date he turned 60.


9.  On 29 April 2009, the applicant completed a DD Form 2656-6 and indicated that he had child coverage on that date and was requesting a change of coverage based on marriage.  He further requested to change his coverage to spouse only based on full retired pay.  He and a witness authenticated this form by placing their signatures in the appropriate blocks. 

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.  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 26 March 2005.  The law permitted him to add his spouse within 1 year of their marriage.  He did not do so.  

3.  Within a few months of the applicant's marriage, the law established an Open Season to be conducted from 1 October 2005 to 30 September 2006, thus allowing the applicant a few extra months to enroll his spouse in the SBP.  He did not do so. The applicant completed DD Form 2656 electing spouse coverage on 16 October 2007 and completed a DD Form 2656-6 on 29 April 2009; however, there was no Open Season in effect at the time he completed the DD Form 2656 and/or the DD Form 2656-6.  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.  Congress periodically establishes Open Seasons, and the applicant should carefully review issues of Army Echoes, a bulletin provided to retirees several times a year, for news of the next Open Season.  While the available evidence is insufficient for awarding the applicant relief at this time, 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.  


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)                                         AR20090008296



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ABCMR Record of Proceedings (cont)                                         AR20090008296



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