IN THE CASE OF:	  

		BOARD DATE:	  27 January 2010

		DOCKET NUMBER:  AR20090011807


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 he be allowed to enroll in the Reserve Component Survivor Benefit Plan (RCSBP) and designate his mother as beneficiary.

2.  The applicant states, in effect, he never had the opportunity to make a RCSBP election naming his mother as the beneficiary.  He states the Human Resources Command, St. Louis, MO (HRC-STL) did not change his address as it should have, so he did not receive the necessary forms in time.  The applicant states "the address system" will not accept "COND" (for Condado) in his address, only "URB" (for Urbanizacion) for Puerto Rico.

3.  The applicant provides a piece of paper from the Clinica Las Americas Guaynabo.

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 is a retired US Army Reserve (USAR) Soldier residing in Puerto Rico.  He was born on 16 March 1958 and he will turn 60 on 16 March 2018.  He served in the Regular Army and the USAR commencing on 21 May 1979 and ending on 11 February 2002 with his transfer to the USAR (Retired Reserve).

3.  The applicant was notified of eligibility for retired pay at age 60 in a memorandum, dated 11 July 2001 (the 20-Year Letter).  The memorandum was mailed to J6 Calle 8, Bayamon, Puerto Rico 00957-4331.  That memorandum states in paragraph 4:

"You are entitled to participate in the Reserve Component Survivor Benefit Plan (RC-SBP) established by Public Law 95-397….  By law, you have only 90 calendar days from the date you receive this memo to submit your DD Form 1883, Survivor Benefit Plan – Election Certificate.  If you do not submit your election plan within 90 calendar days, you will not be entitled to survivor benefit coverage until you apply for retired pay at age 60.  If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits."

4.  The applicant's Total Army Personnel Data Base (TAPDB) transaction history contains an entry showing that his 20-Year Letter was mailed to his J6 Calle 8, Bayamon, Puerto Rico 00957-4331 address.  On 22 March 2002, the applicant updated his address, again showing J6 Calle 8, Bayamon, Puerto Rico
00957-4331 as his correct address.  This address does not appear to change until the applicant submitted his 25 June 2009 application to this Board.  In his application to the Board, he listed his address "Cond. Brisas de Panorama, Apt XXX, Bayamon, PR  00957."

5.  On 30 September 1978, Public Law 95-397 established the RCSBP in order to allow Reserve Component members to purchase the same protection afforded Active Component members since 21 September 1972 with the Survivor Benefit Plan (SBP).  RCSBP allows a retirement-eligible Reserve Soldier to elect to receive reduced retired pay during the Soldiers lifetime in order to provide a continuation of a portion of the retired pay to a survivor upon death.  Along with the 20-Year Letter, the Soldier will be sent RCSBP information and instructions for enrolling in the program by completing an RCSBP election form, DD Form 1883. 

6.  The DD Form 1883 must be completed; signed by the Soldier and, if applicable, the Soldier's spouse; witnessed by a disinterested person; and returned to the HRC-STL within 90 days of receipt.

7.  RCSBP elections must be made within 90 days after receiving the retirement packet (20-Year Letter).   Since 1 January 2001, by law, married members must provide written spouse concurrence in order to elect less-than-maximum RCSBP participation (i.e., other than Option C, full base amount, spouse or spouse and children).  Failure to do so will result in “automatic” spouse coverage, Option C, full base amount, for which premiums will begin to be owed at age 60.   Prior to 1 January 2001, failure to make any or a proper RCSBP election “defaulted” to no coverage, by law.  This law change was enacted to bring the RC plan (RCSBP) elections into line with the AC plan (SBP) elections, which have required spouse concurrence since 1 March 1986.  Options include:

	a.  Option A:  Defer or decline to make an SBP election until the Soldier begins drawing retired pay at 60.  (NOTE: If this option is chosen, spouse concurrence is required.  If the Soldier dies before 60, no annuity is payable to survivors.  Under this option, if the Soldier lives until 60, Soldier will be given an opportunity at that time to elect standard SBP).

	b.  Option B:  Provide an annuity beginning on the Soldier's 60th birthday (if he/she dies before 60), or upon death (if age 60 or older at death).

	c.  Option C:  Provide an annuity beginning on the day after death, regardless of the Soldier's age at death.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants to elect RCSBP Option C naming his mother the beneficiary retroactive to a date within 90 days of receipt of his 11 July 2001 
20-Year Letter.

2.  The applicant alleges he did not receive his RCSBP paperwork due to an incorrect address on file at the HRC-STL.  This argument does not appear to be a valid one.  The applicant obviously received his 20-Year Letter because he chose transfer to the Retired Reserve some 6 months later.  Therefore, it stands to reason he received his RCSBP paperwork, but did not respond.

3.  The applicant has missed his opportunity to elect RCSBP Option C with his mother as the beneficiary.  However, when he makes application for retired pay in late 2017 or early 2018, he can sign up for SBP and list his mother as his beneficiary at that time.
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)                                         AR20090011807



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ABCMR Record of Proceedings (cont)                                         AR20090011807



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