IN THE CASE OF:	

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090012389 


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 military records be corrected by changing his Reserve Component Survivor Benefit Plan (RCSBP) election from children only to spouse coverage.

2.  The applicant states, in effect, that at the time he submitted his paperwork for retired pay he was not informed that he was supposed to contact the Defense Finance and Accounting Service (DFAS) within one year of his marriage to change his SBP election.  He points out that he was 50 years old when he remarried and that he would not have to pay for spouse coverage until he started drawing retired pay at age 60.  He indicates that if his records are corrected to show he elected spouse coverage he should not owe back pay for 10 years, only 2 years.  He understands that he made an error in judgment when he did not contact DFAS within one year of his marriage but at that time he was unaware of the difficulties he would face.  He states that when he submitted his paperwork for retired pay he talked to personnel in St. Louis, Missouri and they did not inform him that he should have notified DFAS within one year of his marriage to change his SBP election.  He goes on to state that had he known he definitely would have submitted the paperwork within one year of his marriage. 

3.  The applicant provides a Reserve Component Supplemental SBP Election Certificate; a DD Form 1883 (SBP Election Certificate); an excerpt on RCSBP cost coverage; a marriage license; a marriage certificate; a DD Form 2656-6 (SBP Election Change Certificate); and a marriage certificate (renewal) in support of his application.  

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 was born on 4 July 1948.  Having prior active service, the applicant enlisted in the Illinois Army National Guard on 7 March 1980.  

3.  On 10 February 1994, the applicant received his notification of eligibility for retired pay at age 60 (his 20-year letter).

4.  The applicant's DD Form 1833, dated 6 March 1994, shows he enrolled in the RCSBP for children only coverage, option C, full base amount.  Section II of this form stated, "IMPORTANT:  The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully.”   

5.  The applicant was honorably discharged from the Illinois Army National Guard on 10 May 1996 and transferred to the U.S. Army Reserve Control Group (Retired). 

6.  The applicant married his current spouse on 30 May 1998.

7.  The applicant turned age 60 on 4 July 2008.

8.  The applicant provided a DD Form 2656-6, dated 18 July 2006, which shows he elected to change his SBP election from child only to spouse only.   

9.  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.

10.  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.  Three options are 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  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, and RCSBP coverage automatically rolls into SBP coverage.

11.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 to 29 February 2000.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.

12.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 to 30 September 2006.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

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….”

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s DD Form 1883 shows that he enrolled in the RCSBP for children only coverage on 6 March 1994.  Except as provided for by law, that was an irrevocable election that rolled over into the standard SBP upon reaching age 60.  

2.  The applicant married on 30 May 1998 and he had one year from his date of marriage to enroll in the SBP for spouse coverage.  There is no is evidence which shows he enrolled in the SBP within one year of his marriage.  There is evidence to show he attempted to enroll his spouse when he applied for retired pay and his application, by chance, coincided with an Open Season enrollment period.  The Board could correct his record to show he enrolled his spouse during this period; however, the applicant has indicated he is unwilling to incur the substantial buy-in penalty and back premiums associated with an Open Season SBP enrollment.  The Board will not grant equitable relief without applicant's express consent and he is not entitled to relief at law.  

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)                                         AR20090012389





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ABCMR Record of Proceedings (cont)                                         AR20090012389



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