IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100011839 


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, in effect, correction of his records to show he enrolled in the Survivor Benefit Plan (SBP) within one year of his marriage.

2.  The applicant states he was unmarried and did not have any eligible dependents at the time of his retirement.  He contends that he was unaware of the requirement to enroll in the SBP within 1 year of marriage.  He further states that the Army Reserve did not brief him about this requirement.

3.  The applicant provides copies of his marriage certificate, spouse's birth certificate, social security card, military dependent identification card, and SBP query from the Retiree Pay System.

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 U.S. Army Reserve Personnel Center, St. Louis, MO sent the applicant a letter, dated 31 December 1986, notifying him of his eligibility for retired pay at age 60.  This letter informed him that he was eligible to participate in the RCSBP.  He was also informed that he had a 90-day suspense to make his election.  Failing to do so would result in his remaining uncovered until he became 60 years of age and applied for retired pay.

3.  The applicant was transferred to the Reserved Reserve on 1 March 1993.

4.  The applicant attained 60 years of age on 20 November 2001.  DD Form 2656 (Data for Payment of Retired Pay), dated 25 May 2000, indicates that the applicant declined to participate in the SBP and he had no eligible dependents.

5.  The applicant provided a marriage certificate showing that he had married on 23 February 2005.

6.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

7.  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.  

8.  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.

9.  All issues of Army Echoes going back at least the January - March 1998 issue carry the reminder: “REMEMBER:  You (emphasis in the original) are responsible for updating your retired pay file information at DFAS-CL within one year of the event if you marry, remarry, have a child, are widowed, or divorced and need to make or update a Survivor Benefit Plan (SBP) election.”

10.  The National Defense Authorization Act (NDAA) for Fiscal Year 2005 established an SBP Open Enrollment period to be conducted 1 October 2005 to 30 September 2006.  Extensive publicity was given in Army Echoes, the authorized 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.  The retiree must have paid 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.

	a.  Army Echoes, Issue 1, January - April 2005, first alerted retirees that an SBP Open Enrollment period would run from 1 October 2005 - 30 September 2006.

	b.  Army Echoes, Issue 3, September - December 2005, also alerted retirees that the retiree who enrolls in the SBP during the Open Enrollment period must pay monthly premiums starting on the date of enrollment and a one-time buy-in enrollment premium.  It provided an internet reference that would aid retirees in calculating their cost.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be permitted to enroll in the SBP because he was not informed he had only 1 year after marriage to enroll.  

2.  The available evidence clearly shows that the applicant was transferred to the Retired Reserve on 1 March 1993, he applied for retired pay on 24 May 2000, he attained age 60 on 20 November 2001, and he married on 23 February 2005.  Had he exercised reasonable diligence in the conduct of his personal affairs, he would have read Army Echoes which has, since 1998, continually reminded Army retirees of the 1-year requirement for SBP enrollment after marriage.  In 2005, this same publication further informed Army retirees of the open enrollment season from 1 October 2005 to 30 September 2006, which in effect extended the applicant's enrollment window by over 7 months beyond his 1-year anniversary.

3.  The applicant has the option of enrolling in the SBP if/when Congress declares another open season.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100011839



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ABCMR Record of Proceedings (cont)                                         AR20100011839



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