BOARD DATE:	  16 October 2012

		DOCKET NUMBER:  AR20120006581 


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 reflect his wife as the sole beneficiary of his Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, he made his SBP election in 1995 after he received his 20-year letter.  He was divorced and he had one child, therefore, he elected Reserve Component (RC) SBP (RCSBP) option C for "child only."  He was informed he could make changes to the original election when he retired; therefore, he did not make changes when he remarried.  Upon receipt of his annuity he noticed the funds were not coming out for a spousal annuity.  When he called to inquire he was informed his original election was irrevocable.  

3.  The applicant provides:

* Divorce decree, dated 30 May 1985
* Notification of Eligibility for Retired Pay at Age 60, dated 27 October 1994
* DD Form 1883 (SBP Election Certificate), dated 30 January 1995
* Certificate of marriage registration, dated 19 March 2002
* Certificate of live birth, dated 18 June 2002
* Certificate of live birth, dated 22 November 2004
* DD Form 2656 (Data for Payment of Retired Personnel), dated 20 July 2011




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's record shows he was born on 10 November 1952 and enlisted in the U.S. Army Reserve (USAR) on 28 September 1973.  He served through multiple reenlistments and he has attained the rank/grade of master sergeant (MSG)/E-8.   

3.  He provided a divorce decree, dated 30 May 1985, which shows he was divorced from his first wife, Reina, on that same date.

4.  On 27 October 1994, the USAR issued the applicant his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

5.  On 30 January 1995, he completed a DD Form 1883 wherein he indicated he was unmarried and he had one dependent child.  He listed his daughter Michaela, born on 7 April 1976, as his dependent.  He further elected option C, "child-only" coverage, full amount, under the RCSBP.  Option C states, "I elect to provide an immediate annuity beginning on the day after my death, whether before or after age 60."  

6.  He provided a certificate of marriage registration, showing he married his second wife, Amy, on 17 March 2002.

7.  He provided two certificates of live birth which show he and his wife Amy had two sons, William, born on 18 June 2002, and Evan, born on 22 November 2004.



8.  On 20 July 2011, he completed a DD Form 2656, wherein he annotated his scheduled retirement date as 10 November 2012.  He elected SBP coverage for his spouse based on the full gross pay without supplemental SBP and indicated he has two dependent children 

9.  Public Law 95-397, enacted 30 September 1978, provided a way for RC members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:

* option A – elect to decline enrollment and choose at age 60 whether to start SBP participation
* option B – elect that a beneficiary receive an annuity if they die before age 60, but delay payment until the date of the member's 60th birthday
* option C – elect that a beneficiary receive an annuity immediately upon their death if before age 60

10.  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; the options automatically roll 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.  The National Defense Authorization Act for Fiscal Year 2005 established an open season for enrollment to be conducted from 1 October 2005 through 30 September 2006.  The retiree must pay 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.  Extensive publicity was given in Army Echoes.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to reflect his wife as the sole beneficiary of his SBP coverage.

2.  The evidence of record shows that upon receipt of his 20-year letter, the applicant executed an SBP Election Certificate, electing immediate coverage under Option C for "child only coverage."  He did not have a spouse at the time.  He and his spouse were married on 17 March 2002.  The law permitted him to add his spouse within 1 year of their marriage.  He did not do so.

3.  Additionally, the law established an Open Season from 1 October 2005 through 30 September 2006.  He could have enrolled his spouse as beneficiary at that time; however, he did not do so.  Therefore, there is no error or injustice in his record.

4.  Based on the forgoing, there is insufficient evidence to grant relief in this case. If Congress authorizes another Open Season in the future, it will be publicized in Army Echoes.

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)                                         AR20120006581



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ABCMR Record of Proceedings (cont)                                         AR20120006581



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