IN THE CASE OF:	  

		BOARD DATE:	  30 April 2013

		DOCKET NUMBER:  AR20120018318 


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 to resume the Survivor Benefit Plan (SBP) with his current wife as the beneficiary. 

2.  The applicant states he remarried on 19 April 2008 and obtained an identification card for his new wife on 18 September 2008.  At that time, he was not advised of any additional requirements for properly covering his new wife under the SBP.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), Notification of Eligibility for Retired Pay at Age 60 (commonly referred to as the 20-year letter), DD Form 1883 (Survivor Benefit Plan Election), two DD Forms 2656-5 (Survivor Benefit Plan Election Change Certificate), 24 March 2005 retirement orders, Defense Finance and Accounting Service (DFAS) Retiree Account Statement, marriage certificate and divorce decree from P____, marriage certificate to C____, Army National Guard (ARNG) Retirement Points History Statement, and his retiree identification (ID) card.

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, born on 25 April 1951, enlisted in the ARNG on 13 September 1969.  He entered active duty on 25 June 1983, and he served continuously until he retired from active duty on 30 July 2005.

3.  He was issued a 20-year letter on 23 October 1989.  

4.  On 9 December 1989, he completed a DD Form 1883 electing full and immediate (Option C) spouse and children coverage under the Reserve Component SBP (RCSBP).  At this time, he was married to P____.

5.  The applicant and P____ divorced on 7 April 1992.  There is no indication a former spouse election was made or required as part of a divorce agreement.

6.  The applicant retired on 31 July 2005 based on 22 years of active duty service.  At that time the applicant did not have any eligible beneficiary for the SBP.  

7.  He married C____ on 28 March 2008.  His issuance of a new ID card, dated 18 September 2008, appears to support his contention he added C____ as a dependent at that time.  However, there is no evidence an SBP election was made at that time.

8.  His 2 December 2011 DFAS Retiree Account Statement states there is no SBP election reflected on his account.  

9.  On 13 January 2012, the applicant submitted a DD Form 2656-5 naming C____ as the SBP beneficiary.

10.  On 3 February 2012, DFAS notified the applicant that his request to have SBP coverage for C____ could not be honored because he had not notified them of his marriage within one year of that marriage.

11.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

12.  Public Law 95-397, enacted 30 September 1978, provided RCSBP as 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.  

13.  In similar cases, the Army Retirement Services has advised that if a Soldier, who had previously qualified for a Reserve retirement and had made an RCSBP election but actually retired based on longevity on active duty, any RCSBP election would be rendered moot and the Soldier would not be liable for any RCSBP coverage requested.

14.  Title 10, U.S. Code, section 1448, provides the law for participation in and changes to SBP and RCSBP options and beneficiaries.  It provides guidance for adding a spouse for a retired service member who is not married at the time they become eligible to participate in the SBP and later marries.  It states that in order to qualify for SBP coverage for the new spouse, a service member must submit the request within 1 year of marriage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant elected to participate in the RCSBP in 1989 when he first qualified for a Reserve retirement.  At that time, he elected to afford his dependents full and immediate coverage in the event he died prior to being eligible to receive retired pay (Option C).

2.  He divorced his first spouse, P____, in 1992 and his RCSBP account went into a suspended status.  

3.  Had he retired with a Reserve retirement, his new wife would have been automatically covered since any previously suspended coverage under RCSBP resumes by default on the first day of the month following the first anniversary of the remarriage.

4.  However, his retirement in 2005 was an active duty retirement, not a Reserve retirement.  This conversion of retirement entitlement negated his prior RCSBP election and eliminated the automatic default coverage provision under RCSBP.

5.  While the applicant's sincerity is not in doubt, there is insufficient independent evidence to show he did not receive full and proper counseling in regard to adding a future spouse to the SBP when or if he remarried.  Further, it was still his responsibility to assess the financial ramifications occasioned by his change in his family status, to inquire into adding a spouse under SBP, and ensure any documentation required to add a new spouse under SBP was completed in a timely manner.

6.  The applicant may enroll his spouse in the SBP if and when Congress declares an open season.  He should read Army Echoes, the Army Bulletin mailed to retirees to inform them of developments in the Army for any news about an upcoming open season.

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)                                         AR20120018318



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ABCMR Record of Proceedings (cont)                                         AR20120018318



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