IN THE CASE OF:
BOARD DATE: 2 September 2010
DOCKET NUMBER: AR20100001010
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 his military records be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) and elected Option B, spouse only coverage, based on the full amount of his retired pay within 1 year of his new marriage.
2. The applicant states when he requested to be discharged and assigned to a retired status he was erroneously assigned to a control group. He got married after he was discharged and discovered the error when he tried to get an identification card for his wife. He requested a correction of his records to show his status as a Retired Reserve and new orders were issued. However, he was not advised of any options concerning enrollment in the RCSBP. He states he tried to enroll in RCSBP on 13 February 2009 but he was denied by the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL) because the application was not received within the first year of his marriage.
3. The applicant provides copies of his:
* DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate
* his marriage certificate
* letter, dated 1 April 2009, from HRC-STL
* orders showing his change of status from 26 October 1999 to 2 February 2007
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 applicants 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 applicants 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 commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 26 July 1986. He had previously served 2 years of active enlisted service in the U.S. Navy and 4 years, 11 months, and 15 days in an enlisted inactive USAR status.
3. The applicant's 20-year letter, dated 1 April 1996, notified him he had completed the required years of service and he would be eligible for retired pay upon application at age 60.
4. On 2 May 1996, the applicant completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) indicating he had no spouse and no dependent children.
5. Headquarters, 19th Theater Army Area Command, Des Moines, IA
Orders 99-299-02, dated 26 October 1999, transferred the applicant to the USAR Control Group (Annual Training) effective 26 November 1999.
6. USAR Personnel Command, St. Louis, MO (now known as HRC-STL) Orders C-11-938942, dated 30 November 1999, assigned the applicant to the USAR Control Group (Reinforcement) effective 30 November 1999.
7. USAR Personnel Command Orders D-07-135532, dated 27 July 2001, discharged the applicant from the USAR effective 1 August 2001. At that time the applicant had completed 23 years, 11 months, and 27 days of qualifying service for retirement pay at age 60.
8. On 27 April 2002, the applicant was married. This was his first marriage.
9. HRC-STL Orders C-02-705003, dated 2 February 2007, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the Retired Reserve effective 1 August 2001.
10. The DD Form 2656-5 the applicant submitted with his application indicates he has a wife and no dependent children. The form shows he elects Option B, spouse only coverage, based on the full amount of his retired pay. Both the applicant and his wife signed the form and his wife's signature is notarized.
11. 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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.
12. Public Law 108-375, enacted 28 October 2004, established an open enrollment period from 1 October 2005-30 September 2006 for members not participating to the fullest possible extent in the SBP and the RCSBP.
13. Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married or 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. Army Echoes is an Army Bulletin for the Army Retiree published three times a year and mailed to Army retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. These Bulletins consistently contain a reminder to retirees that they are responsible for updating their accounts within 1 year of marriage, remarriage, divorce or upon the death of a spouse; and that they may need to make or update a SBP election. Periodically, these Bulletins contain articles explaining the SBP and the importance of keeping accounts up to date.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his military records should be corrected to show he enrolled in the RCSBP and elected Option B, spouse only coverage, based on the full amount of his retired pay within 1 year of his marriage. He contends he never received proper counseling concerning enrollment after he was married.
2. At the time the applicant received his 20-year letter he had no wife and no children.
3. On 27 July 2001, the applicant was erroneously discharged from the USAR.
4. The applicant was married on 27 April 2002, however, due to his erroneous discharge he had no military status. Therefore, he could not have enrolled in the RCSBP within 1 year of his marriage. In addition, because he was discharged he would not have been receiving issues of Army Echoes that consistently contained reminders to retirees that they are responsible for updating their accounts within 1 year of marriage.
5. The applicant's status was corrected to "assigned to Retired Reserve" on 2 February 2007. However, the 1-year period from the date of his marriage had already expired.
6. There have been no open season periods available to the applicant since his military status has been corrected wherein he could have enrolled in RCSBP.
7. In view of the above, there is sufficient evidence to show applicant's ability to enroll in RCSBP was hampered due to his erroneous discharge and the lack of information provided to him concerning new marriages and the effect it can have on the RCSBP.
8. Therefore, as a matter of equity, it is appropriate to correct the applicant's record to show he enrolled in the RCSBP and elected Option B, spouse only coverage, based on the full amount of his retired pay within 1 year of his marriage.
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 showing he enrolled in the RCSBP and elected Option B, spouse only coverage based on the full amount of his retired pay within 1 year of his marriage.
____________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) AR20100001010
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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