IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090009629 


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 Reserve Component Survivor Plan Benefit (RCSBP) election be changed from children only coverage to spouse and children coverage. 

2.  The applicant states that when he completed the DD Form 1883 (Survivor Election Plan Certificate), on 7 December 2002, he was unmarried and was not told, if he were married at a later date and desired spouse SBP coverage, he would have to change his election within 1 year of the date of his marriage.  He adds that if he had been given such information he would have made the change within the allotted time.  He also states that when he got married, he provided his unit clerk with a copy of the marriage certificate so his wife would be added to his Sevicemembers Group Life Insurance, Basic Allowance for Quarters, and all other required military applications; however, neither the unit nor the Department of the Army notified him of the requirement to change his election.   He further states that he had never received a copy of the Army Times which gives a list of updated and current regulations and appeals to this Board to grant him relief. 

3.  The applicant provides a copy of his State of Florida Marriage Record, dated 20 December 2002; a copy of his DD Form 1883, dated 7 December 2002; a copy of a signed/notarized DD Form 2656-6 (Survivor Benefit Plan Election Coverage Certificate), dated 14 October 2008; and a copy of a letter, dated 11 March 2009, from the Transitions and Separations Branch, U.S. Army Human Resources Command (USAHRC), St. Louis, MO, 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 6 April 1958 and enlisted in the Regular Army on 16 June 1976.  He was honorably released from active duty on 22 June 1979 and transferred to the U.S. Army Reserve (USAR) Control Group for completion of his Reserve obligation.  His records also show he enlisted in the USAR on 9 April 1976 and executed a 1-year extension on 3 April 1982.  

3.  The applicant's records also show he enlisted in the Florida Army National Guard (FLARNG) on 13 March 1986 and subsequently served through a series of reenlistments and/or extensions.  He attained the rank/grade of sergeant first class (SFC)/E-7.

4.  On 10 October 2002, the Office of the Adjutant General, FLARNG, 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 7 December 2002, the applicant completed a DD Form 1883.  He indicated that he was not married and further elected "children only" coverage, full amount, option C (immediate coverage), under the RCSBP.  

6.  On 20 December 2002, the applicant married his spouse A_ _ _ _ _ _.

7.  Effective 4 June 2004, the applicant was honorably discharged from the ARNG and as a Reserve of the Army; however, his discharge was later revoked and he was transferred to the Retired Reserve.

8.  On 14 October 2008, the applicant completed a DD Form 2656-6 and indicated that he had child only coverage on that date and was requesting a change of coverage based on marriage.  He further requested to change his coverage to spouse and children, based on full retired pay.  He and a witness authenticated this form by placing their signatures in the appropriate blocks. 

9.  On 11 March 2009, by letter, the Chief, Transition and Separations Branch, USAHRC, St. Louis, MO, notified the applicant that his request for enrollment in the RCSBP was returned without action since he did not request coverage within 1 year of his marriage.

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

14.  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 RCSBP election should be changed from children only coverage to spouse and children coverage. 

2.  The evidence of record shows that upon receipt of his 20-year letter, the applicant executed an SBP Election Certificate, on 7 December 2002, 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 less than 2 weeks later, on 20 December 2002.  The law permitted him to add his spouse within 1 year of their marriage.  He did not do so.  

3.  Subsequent to 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 another opportunity to enroll his spouse in the SBP.  He did not do so. The applicant completed a DD Form 2656-6 on 14 October 2008; however, there was no Open Season in effect at the time he completed the DD Form 2656-6. Therefore, there is no error or injustice in his record.

4.  Congress periodically establishes Open Seasons, and the applicant should carefully review issues of Army Echoes, a bulletin provided to retirees (and gray-area retirees, provided they keep their addresses up-to-date) 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.  

5.  The decision to enroll in or disenroll from the SBP/RCSBP is a personal decision, made by the member and his/her family.  In this case, the applicant was married on 20 December 2002.  It appears that having completed his DD Form 1883 just two weeks earlier, he knew or should have known of the requirements to change his desired coverage or at least to inquire about adding his spouse to a form he had just completed two weeks earlier.  

6.  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 did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him the 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)                                         AR20090009629



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ABCMR Record of Proceedings (cont)                                         AR20090009629



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