IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110016582 


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 elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.

2.  The applicant states, in effect, his spouse was not enrolled in the RCSBP during their first year of marriage due to a lack of training and knowledge of the National Guard unit upon his separation and his multiple brain surgeries. 

3.  The applicant provides:

* Marriage certificate
* Notice of Award, dated 11 February 2007, from the Social Security Administration
* Medical statements
* DD Form 2656-5 (RCSBP Plan Election Certificate)
* NGB [National Guard Bureau] Form 22 (Report of Separation and Record of Service)

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 6 March 1962.  He enlisted in the Army National Guard (ARNG) on 24 January 1981.  

3.  On 9 February 2001, he received his notification of eligibility for retired pay at age 60 (his 20-year letter).  Records at the U.S. Army Human Resources Command do not show he ever made an RCSBP election.

4.  He was honorably discharged from the ARNG on 1 April 2002 in the rank of sergeant first class and transferred to the Retired Reserve.

5.  He married on 1 April 2006.   

6.  He provided medical statements for services during the period November 2006 to March 2007.  One statement indicates he underwent neurosurgery in February 2007. 

7.  He also provided a DD Form 2656-5, dated 22 September 2011, which shows he elected spouse coverage, option C (immediate annuity).

8.  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.  

9.  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.  

10.  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.  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.

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 one year after the date on which that person marries or acquires that dependent child. 

12.  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 did not make an RCSBP election in 2001.  He married on 
1 April 2006.  

2.  The applicant contends his spouse was not enrolled in the RCSBP within one year of their marriage due to lack of knowledge by the National Guard unit upon his separation.  However, he was discharged from the Army National Guard in April 2002.  He married four years later in April 2006. 

3.  He also contends his spouse was not enrolled in the RCSBP within one year of their marriage due to his multiple brain surgeries.  However, evidence provided by the applicant shows he underwent neurosurgery in February 2007, almost 
11 months after he was married.

4.  Since he married after he received his 20-year letter, he had one year from his date of marriage to enroll.  There is also no evidence to show he attempted to enroll during an Open Season.  Regrettably, 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 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)                                         AR20110016582





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ABCMR Record of Proceedings (cont)                                         AR20110016582



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