IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110016016 


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 correction of his records to change his Reserve Component Survivor Benefit Plan (RCSBP) election from "spouse only" to "child only."

2.  The applicant states he forgot to include his son when he initially filled out the paper work for RCSBP.  His child is permanently disabled and he (the applicant) is now divorced and wants to change his coverage to "child only."

3.  The applicant provides:

* A divorce decree
* A birth certificate
* DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) 
* A doctor's statement
* A Department of Veterans Affairs Rating Decision

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 26 January 1947.  He married on 22 February 1970 to his spouse Maria.  They had two children, one of whom was born on
1 November 1970 with a permanent disabling condition.

3.  Having had prior active and Reserve service, the applicant enlisted in the Puerto Rico Army National Guard (PRARNG) on 11 January 1979.  He served through multiple reenlistments or extensions and he attained the rank of sergeant major (SGM).

4.  On 31 March 1997, the PRARNG issued the applicant a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This memorandum notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

5.  Enclosed with this letter was a DD Form 1883 which notified him that he was entitled to participate in the RCSBP and that "by law" he had only 90 calendar days from the date he received the letter to submit his SBP Election Certificate.

6.  On 21 April 1997, he completed a DD Form 1883, wherein he indicated he was married at the time with one dependent child.  This form also shows he elected "spouse only" full coverage under option C (immediate coverage).

7.  He was honorably released from the PRARNG on 30 June 2005 in the rank of SGM and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired).

8.  Orders P11-692236, issued by U.S. Army Human Resources Command, St. Louis, MO, dated 28 November 2006, placed him on the Retired List in the rank of SGM effective 26 January 2007.

9.  The applicant provides a divorce decree, dated 7 October 2009, that shows he and his spouse were divorced on that date.  The divorce decree ordered him to pay child support for their permanently disabled child born on 1 November 1970.  The divorce decree is silent on the subject of alimony, retired pay, and SBP.

10.  In the processing of this case, on 14 February 2012, a Defense Finance and Accounting Service (DFAS) official verified that DFAS never received a divorce decree from the applicant.  His current SBP election reflects coverage for "spouse only."  His spouse is listed as Maria.  He continues to pay premiums.

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 (and participate in SBP), 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. 

12.  Children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22 if still in school.  A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 22 if a full time student).  Marriage at any age will terminate a child's eligibility.

13.  Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to first anniversary of remarriage).  Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date.  An election to terminate spouse coverage under this law, once made, is irrevocable.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows upon receipt of his 20-year letter, the applicant executed a DD Form 1883 on 21 April 1997, electing "spouse only" coverage under option C (immediate coverage).  He was married and had a permanently disabled child of 27 years of age at the time.

2.  He was placed on the Retired List on 28 November 2007.  He and his spouse divorced two years later on 7 October 2009.  He did not notify DFAS of his divorce or make a former spouse election within 1 year of his divorce.  He has continued to pay SBP premiums in what appears to be a mistaken belief that his disabled son would receive support from his former spouse via his original spouse election.

3.  It appears he did not understand the ramifications of electing "spouse only" coverage at the time he executed the DD Form 1883 on 21 April 1997 and he most likely was not properly advised on the option most beneficial to his disabled child in the long term.  Therefore, as a matter of equity, it would be appropriate to correct his records to show he elected "spouse and child" coverage under option C on 21 April 1997.

4.  The applicant is advised that in the event his coverage is changed to "spouse and child," and he remarried, he must notify DFAS within 1 year of his marriage that he does not intend to extend spouse coverage to his newly-acquired spouse.  Otherwise at the time of his death, his SBP annuity would revert to his new spouse at that time and his disabled son would have no entitlement to his SBP annuity.

5.  With respect to his request to change his SBP election from "spouse only" to "child only," once a member elects option C coverage, they cannot change options.  Therefore, there is no basis for granting this portion of his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* showing he elected "spouse and child" full coverage under option C (immediate coverage) when he completed his DD Form 1883 on 21 April 1997
* reimbursement or payment of any monies due as a result of this correction


2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his SBP election to "child only."



      ___________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)                                         AR20110016016



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ABCMR Record of Proceedings (cont)                                         AR20110016016



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