IN THE CASE OF:	  

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090011835 


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 Benefit Plan (RCSBP) election, dated 26 September 1979, be changed from "reduced amount" to "full amount."

2.  The applicant states that he elected spouse and children SBP coverage in 1979 based on a reduced amount.  He adds that during a record review in 1985, he removed his son and stepson because of their age and updated the amount to full amount for his wife.  In 1995, when he applied for retirement, he again named his wife for the right amount.  When his wife became old enough for her own military retirement, they noticed that she was paying more for the SBP than he was.  In checking with officials at the Defense Finance and Accounting Service (DFAS), he was informed that after 1979, he could not change his SBP amount unless he remarries, even though DFAS officials had copies of his 1985 and 1995 updates.  He and his wife had been married for 33 years.  It was always his intent to provide for his wife upon his death.  He is not asking for anything new or different from what he had indicated for many years.  

3.  The applicant provides a copy of his National Guard Bureau (NGB) Form     23 (Army National Guard Current Annual Statement), dated 27 May 1993; a  copy of his DD Form 2656 (Data for Payment of Retired Personnel), dated          6 September 1995; a copy of his DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 27 September 1979; and a copy of his Standard Form 1199A (Direct Deposit Sign-Up Form), dated 17 August 1995, in support of his request.

4.  On 17 December 2009, by fax, the applicant submitted a statement in which he stated that he wishes to change his SBP coverage to reflect the maximum allowed for his spouse. 

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 records show he was born on 3 May 1936 and completed a period of enlisted service in the Army National Guard from 5 November 1956 through 31 July 1976.  He was appointed as a warrant officer in the Idaho Army National Guard (IDARNG) on 1 August 1976 and was awarded military occupational specialty 961A (Supply Technician).  

3.  The applicant's records also show he married his spouse, Dxxxxxa, on 15 June 1976.  The applicant's spouse was born on 3 December 1946 and completed a period of enlisted service in the Air Force and ARNG.  

4.  On 4 February 1977, Department of the Army and the Air Force, National Guard Bureau, 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 26 September 1979, the applicant completed a DD Form 1883.  He indicated that he was married to "D------" and had three dependent children,   (Th------, was born on 5 August 1968; V---, was born on 26 December 1965; and A----, was born on 2 April 1962).  He further elected "spouse and children" coverage, based on a reduced amount ($300.00), option C (immediate coverage), under the RCSBP.  He, his spouse, Dxxxxxa, and a counselor authenticated this form by placing their signatures in the appropriate blocks. 

6.  On 19 April 1993, the applicant was honorably discharged from the ARNG in the rank of chief warrant officer four (CW4).  He had completed 36 years, 5 months, and 16 days of total service for pay.  

7.  On 1 May 1995, Headquarters, IDARNG, issued the applicant's spouse, D-----a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified her that she had completed the required years of service and would be eligible for retired pay upon application at age 60.

8.  On 20 June 1995, the applicant's spouse, D------, completed a DD Form 1883. She indicated that she was married to the applicant and had no dependent children.  She further elected "spouse" coverage, based on the full amount, option C (immediate coverage), under the RCSBP.  She and her spouse, the applicant, authenticated this form by placing their signatures in the appropriate blocks. 

9.  On 6 September 1995, in conjunction with his application for retirement, the applicant completed a DD Form 2656 and indicated that he was married to D------ and had no dependent children.  He further elected SBP spouse coverage based on the full amount.  He also elected basic coverage based on full gross pay plus supplemental coverage of 20 percent.  He, his spouse, and a witness authenticated this form by placing their signature in the appropriate blocks. 

10.  On 27 March 1996, the U.S. Army Reserve Personnel Center (now known as the U.S. Army Human Resources Command), St. Louis, MO, published Orders P-03-301857, retiring the applicant and placing him on the retired list in his retired rank of CW4 effective 3 May 1996, his 60th birthday.

11.  On 26 October 2006, the U.S. Army Human Resources Command, St. Louis, MO, published Orders P10-690909, retiring the applicant's spouse, D------, and placing her on the retired list in her retired rank of SGT effective 3 December 2006, her 60th birthday.

12.  An email, dated 14 December 2009 from DFAS indicates that the applicant is currently paying premiums for spouse coverage based on the reduced amount. 

13.  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. Changes in SBP options are not authorized except in specific instances, or authorized by law 
14.  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.

15.  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.  

16.  Public Law 101-189, enacted 29 November 1989, established an Open Season to run 1 October 1991 (deferred to 1 April 1992)-30 September 1992.  It provided that the effective date of election shall be the first day of the month following the month DFAS receives the election.  Extensive publicity was given in Army Echoes.

17.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999-29 February 2000.  The retiree must have paid monthly premiums starting on the date of enrollment and a one-time, lump sum enrollment premium.  Extensive publicity was given in Army Echoes.  Army Echoes also warned that for a retiree with a high number of years since first being able to enroll a beneficiary in the SBP and whose retired pay was fairly high, the enrollment premium alone could exceed $50,000.

18.  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.

19.  All of the above Open Seasons permitted a member to increase the amount of SBP coverage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RCSBP election should be changed from the reduced amount to the full amount. 

2.  The evidence of record shows that upon receipt of his 20-year letter, the applicant executed an SBP Election Certificate, on 26 September 1979, electing immediate coverage under Option C for "spouse and children" at a reduced amount.  His spouse concurred with his election.  

3.  The evidence of record further shows that as he neared age 60, the applicant executed another form, in this case a DD Form 2656, on 6 September 1995, in which he elected spouse coverage based on the full amount as well as a supplemental coverage of 20 percent.  However, the applicant did not have the option to execute a new election at the time.  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.  Except in certain congressionally mandated periods, they cannot cancel SBP participation or change options they had in RCSBP – the options automatically roll into SBP coverage.  

4.  Subsequent to the applicant's retirement, the law established an Open Season to be conducted 1 March 1999 to 29 February 2000 and another Open Season to be conducted from 1 October 2005 to 30 September 2006, thus allowing the applicant an opportunity to enroll his spouse in the SBP at the full amount.  He did not do so.  The applicant completed a DD Form 2656 on 6 September 1995; however, there was no Open Season in effect at the time he completed the DD Form 2656. 

5.  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 a future 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.

6.  The decision to enroll in or disenroll from the SBP/RCSBP and the amount of coverage is a personal decision, made by the member and his/her family.  In this case, the applicant made the original election of a reduced amount and his spouse concurred with that decision.  Therefore, there is no error or injustice in his record.

7.  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)                                         AR20090011835



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090011835



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1