BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120020844 


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 enrollment in the Reserve Component Survivor Benefit Plan (RCSBP) for "spouse and child" coverage, Option C.

2.  The applicant states he applied for RCSBP and was denied.  The state of Utah lost his military personnel records.  It has taken him 5 years, significant travel, and several thousands of dollars to find and recreate his records.  He and his family have had to fight with their country for years due to lost and misplaced records.  Now he is terminally ill, he is still fighting for his benefits because of the ineptitude of his country, and he feels betrayed by his country.

3.  The applicant provides:

* Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 19 October 2000
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Marriage license, dated 26 June 2004
* Certified copy of marriage license, dated 1 December 2006
* Military identification card, dependant
* Orders C-02-502267, dated 9 February 2005
* Chronological statement of retirement points, dated 31 October 2009
* Letter, dated 20 February 2010
* Letter from his Member of Congress, dated 22 October 2010
* Letter, dated 10 November 2010


* DD Form 2656-5 (RCSBP Election Certificate), dated 31 July 2012
* copy of an envelope (First Class), dated 10 September 2012
* Undated letter from the U.S. Army Human Resources Command (HRC)
* Appeal of RCSBP denial, dated 1 November 2012

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 in May 1959 and was appointed as a Reserve commissioned officer on 14 May 1983.  He served in a variety of assignments in the U.S. Army Reserve (USAR) as well as in the Army National Guard (ARNG), and attained the rank of major (MAJ).

3.  On 19 October 2000, the U.S. Army Reserve Personnel Command (currently referred to as HRC), St. Louis, MO, issued him a 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.  This letter further stated:

	a.  "You are entitled to participate in the Reserve Component SBP (RCSBP) established by Public Law 95-397.  This plan enables you to provide an annuity for your spouse and other eligible beneficiaries."

	b.  "By law, you have only 90 calendar days from the date you receive this letter to submit your SBP Election Certificate (DD Form 1883).  If you do not submit your election within 90 calendar days, you will not be entitled to survivor benefit coverage until you apply for retired pay at age 60.  If you do not elect coverage and should die before age 60, your survivors will not be entitled to benefits."

	c.  "More detailed information concerning participation in the RCSBP and a blank DD Form 1883 are enclosed."

4.  He provided a marriage license which shows he was married 24 June 2004.

5.  He provided orders C-02-502267, issued by HRC, on 9 February 2005, which show he was assigned to the Retired Reserve, effective 11 February 2005.

6.  His record contains a transaction history which shows he received a 20-year letter on 19 October 2000 but did not make an RCSBP election, then he got married on 24 June 2004 but did not make an RCSBP election within the one year anniversary date.  The transaction history further shows:

	a.  on 20 April 2012, the applicant, a grey area retiree, was seeking information on the SBP.  He has been married for 5 years but never added his spouse on his SBP election.  He was diagnosed with terminal cancer and wants to know if he can divorce and remarry his spouse so he can get benefits.  He planned to call the Judge Advocate General (JAG) at Joint Base McChord/Lewis (JBML) to see if that was legal.

	b.  on 31 July 2007, a Veterans Service Representative called HRC in reference to the applicant and that he was terminally ill and was remarried 
5 years ago.  The applicant never completed or submitted a DD Form 2656-5 to change his SBP election and wanted to know if he could now add his spouse.  The applicant was told that according to Army Regulation 600-8-7 (Retirement Services Program), he only had 1 year from the date of his marriage to change his election and add his wife, and that if he waited longer than 1 year he would have to wait until he reached age 60 to change the election.  Therefore, the applicant could not add his current wife at that time without a higher approval.

	c.  on 6 August 2012, HRC received the applicant’s DD Form 2656-5; however, HRC notified him that it had been submitted outside the 1-year anniversary window and returned the form without action on 10 September 2012.

	d.  on an unknown date, HRC received a congressional inquiry and responded to the applicant's Member of Congress by stating the applicant had passed the 1-year anniversary date of his marriage and was, therefore, not eligible to add his spouse to his SBP election at that time.

7.  HRC sent a letter to his Member of Congress, dated 1 October 2012, and explained that the applicant received his 20-year letter on 19 October 2000, 
along with a booklet that contained forms, information, and a fact sheet on the RCSBP.  According to the information in the RCSBP booklet and Army Regulation 600-8-7, chapter 3-8, "if the Soldier has no eligible dependents at the time of RCSBP election and later marries or acquires a dependent child, the Soldier has 1-year from the date of the marriage or acquiring the child to make an RCSBP election.  Election becomes effective upon the 1-year anniversary of marriage or acquiring a dependent child."  The applicant made his election outside the 1-year window; therefore, he is not eligible to participate in RCSBP.

8.  During the processing of this case, an official at the Defense Finance and Accounting Service (DFAS) confirmed that the database maintained by DFAS does not contain any information associated with the applicant regarding an RCSBP election.

9.  He provided a DD Form 2656-5, dated 31 July 2012.  This form shows:

* he was married on 24 June 2004 and listed his wife and stepdaughter as dependents
* he elected option C (Immediate Annuity) and selected spouse and child coverage for his full retired pay
* the form was witnessed but not notarized

10.  He provided a letter, issued by the Army Transition Office, HRC, on an unknown date.  This letter advised him that his request for enrollment in the RCSBP was returned without action.  HRC informed him he was not eligible to make any changes because he did not submit a request for RCSBP coverage for his spouse and child before the first anniversary of his marriage.

11.  He provided an appeal he submitted to HRC, dated 1 November 2012, wherein he stated, in effect, he could not apply for RCSBP coverage for his spouse and child within the required timeframe because the State of Utah, HRC, the Department of Defense, and the Department of Veterans affairs lost his records.

12.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

13.  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 of it 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

14.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and/or has no dependent child upon becoming eligible to participate in the SBP/RCSBP, 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.

15.  Public Law 108-375 established an SBP Open Season which began on 
1 October 2005 and lasted 1 year.  Those who took advantage of the open season were required to participate for at least 2 years from the date of making such an election in order to qualify their survivors for benefits.  Premiums charged were calculated based on the total amount of the premium, plus interest, by which the members’ retired pay would have been reduced if they had elected to participate in the SBP at the first opportunity that they had been afforded.  One-time, buy-in enrollment premiums were due at the time the retiree filed an open enrollment election, although the retiree could elect to defer any portion of the open enrollment premium and have the amount deducted from retired pay in 24 equal monthly installments.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that upon receiving his 20-year letter on 
19 October 2000, the applicant did not complete a DD Form 2656-5 or make an RCSBP election at that time.

2.  He and his spouse were married on 24 June 2004.  He became eligible to make a change in his RCSBP election to "spouse and child" within 1 year of acquiring his spouse.  The law permitted - but did not mandate - him to add his spouse and child within 1 year of his marriage.  He did not do so.  

3.  When he failed to add his spouse and child within 1 year of their marriage, he irrevocably forfeited future spouse and child coverage except during a Congressionally-approved open enrollment period.  The law established an Open Season to be conducted from 1 October 2005 through 30 September 2006, which effectively gave the applicant an additional year to enroll his spouse in the RCSBP.  
4.  He completed a DD Form 2656-6 on 31 July 2012; however, this form could not be processed since it was not received within 1 year of his marriage and there was no Open Season in effect at the time he completed this form.

5.  The decision to enroll in or disenroll from the SBP/RCSBP is a personal decision made by the member and his/her family.  In this case, having been afforded the opportunity to enroll his spouse within 1 year of his marriage and/or during an Open Season, the applicant knew or should have known of the requirements to change his desired coverage or at least to inquire about adding his spouse and child had he decided to do so.  He provides insufficient evidence to show it was the loss of his records that prevented him from enrolling in the SBP.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120020844





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ABCMR Record of Proceedings (cont)                                         AR20120020844



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