BOARD DATE:	3 December 2009  

		DOCKET NUMBER:  AR20090008688 


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 that his records be corrected by adding “Spouse and Children" coverage under the Reserve Component Survivor Benefit Plan (RCSBP). 

2.  The applicant states that he was not properly counseled on the procedures for enrolling a spouse after his initial election.  He explains that he submitted a DD Form 1883 (Survivor Benefit Plan Election Certificate) on 23 June 1995 electing "Children Only" because he was not married at the time.  He adds that he was not counseled by the command as to the procedures necessary to cover a spouse should he remarry in the future.  The applicant states that he was married on 8 October 2000.  He adds that upon his recall to active duty he completed a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate) on 
30 January 2003, modifying his SBP election to include spousal coverage.  He offers that his daughter listed on the original SBP has since aged off, but he now has two other children.  He adds that he did not receive any correspondence from the Human Resources Command (HRC), St. Louis denying his request.

3.  The applicant provides a copy of his DD Form 1883, marriage license, DD Form 2656-6, DD Form 2656 (Data for Payment of Retired Personnel), retirement orders, and Retirement Account Statement.





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 3 February 1947.  On 16 May 1995, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). 

3.  On 23 June 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 daughter as the beneficiary.  

4.  His license and certificate of marriage shows that the applicant was married on 8 October 2000. 

5.  The applicant submitted DD Form 2656-6 dated 30 January 2003 that shows he elected full coverage for his spouse.  His DD Form 2656 dated 7 February 2005 also shows he elected full coverage for his spouse. 

6.  Orders P06-808530 dated 17 June 2008 show that the applicant was retired and placed on the retired list effective on 18 June 2008. 

7.  The applicant's Retiree Account Statement shows that he is paying SBP coverage for children only.

8.  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.  


9.  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.

10.  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.  

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, in effect, that he was not properly counseled and therefore 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.  However, evidence of record shows that the applicant was married in October 2000 and did attempt to change his SBP coverage in January 2003, prior to the establishment of the Open Season held from 1 October 2005 to 30 September 2006.   

3.  Therefore, in the interest of equity it would be appropriate to show that the applicant selected spouse and children coverage under the RCSBP during the Open Season on 1 October 2005. 




BOARD VOTE:

___x_____  ___x____  ___x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  showing that he requested children and spouse coverage under the RCSBP on 1 October 2005 and that his request was received and processed by the appropriate office in a timely manner, and

	b.  deducting the required monthly premiums retroactive to 1 October 2005 as a result of this action. 




      _______ _   _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)                                         AR20090008688





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ABCMR Record of Proceedings (cont)                                         AR20090008688



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