IN THE CASE OF:
BOARD DATE: 11 January 2011
DOCKET NUMBER: AR20100013797
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 by changing his Reserve Component (RC) Survivor Benefit Plan (SBP) election from "children only" to "spouse" coverage.
2. The applicant states that at the time of his retirement in March 1997, he and his wife visited the Utah Army National Guard office to complete the necessary administrative processing paperwork. During this visit they presented their marriage certificate and filled out all the necessary documents and turned them back in. They were informed that according to law, a spouse is required to be designated as the surviving beneficiary unless an official waiver is requested. They did not request such a waiver and believed this applied to the SBP "spouse" coverage. He separated in 1989. His son turned 22 years of age in 1991 and is not disabled.
3. The applicant provides his son's birth certificate 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 7 March 1937. The applicant was commissioned a second lieutenant in the Army National Guard on 1 July 1964 having prior enlisted service in the Army National Guard, Regular Army, and U.S. Army Reserve.
3. On 22 October 1976, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).
4. The applicant's DD Form 1883 (SBP Election Certificate), dated 25 September 1979, 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." This form also shows he was not married at the time.
5. The applicant married on 20 October 1984.
6. A DD Form 1883, dated 7 March 1987, shows the applicant enrolled in the RCSBP for "spouse and children" coverage, option C, full base amount.
7. The applicant was promoted to brigadier general on 1 September 1987.
8. On 21 September 1989, the applicant was discharged from the Army National Guard. He was placed on the Retired List on 7 March 1997.
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 option 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. 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 1 year after the date on which that person marries or acquires that dependent child.
12. Public Law 105-261, enacted 17 October 1998, established an Open Enrollment Season to be conducted 1 March 1999-29 February 2000. 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.
13. Public Law 108-375, enacted 28 October 2004, established an Open Enrollment Season to be conducted 1 October 2005 to 30 September 2006.
DISCUSSION AND CONCLUSIONS:
1. The applicant's DD Form 1883 shows he enrolled in the RCSBP for "children only" coverage on 25 September 1979. 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 in October 1984 and he had 1 year from his date of marriage to enroll in the RCSBP for spouse coverage.
3. Since there was no Open Enrollment Season in 1987, the applicant's DD Form 1883, dated 7 March 1987, for enrollment in the RCSBP for "spouse" coverage was not valid.
4. Since there is no evidence which shows the applicant attempted to enroll in the RCSBP within 1 year of his marriage, regrettably, there is no basis for granting the applicant's request. The applicant should continue to read Army Echoes which will alert him to the possibility of enrolling his spouse in the SBP during an Open Enrollment Season, if and when Congress should declare another Open Enrollment Season.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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 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) AR20100013797
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ABCMR Record of Proceedings (cont) AR20100013797
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