IN THE CASE OF:	  

		BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20120021867 


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 initial Reserve Component Survivor Benefit Plan (RCSBP) election to reflect option B as opposed to the default option C.

2.  The applicant states he elected option B for his RCSBP in June 2012.  The applicant states he reached his 20 years in 2005, before he was married and never filed a DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate) to make an election.  The applicant states he married on 31 December 2007.  

3.  The applicant states he did not receive proper counseling by his unit administrator and there were no certified retirement specialists counseling Soldiers in June 2008.  The applicant states that he recently found out in June 2012 that he had 1 year from that date of his marriage to change his RCSBP election.  The applicant continues that he immediately submitted a DD Form 2656-5 along with his marriage license to the U.S. Army Human Resources Command (HRC).  His application was returned without action because he did not submit his marriage license prior to 1 year after his marriage.

4.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* An HRC Notification of Eligibility for Retired Pay at Age 60, dated 7 April 2005 
* Commonwealth of Pennsylvania Marriage Record, dated 7 January 2008 
* DD Form 2656-5, dated 14 June 2012
* An HRC letter, dated 26 June 2012
* U.S. Army Reserve Command Order 12-228-00004, dated 15 August 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he was born on 30 January 1966.  He had prior active duty service.  On 20 May 1988, the applicant was appointed as a Reserve commissioned officer in the grade of second lieutenant (2LT). 

2.  On 7 April 2005, HRC issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  This letter also notified the applicant that he was entitled to participate in the RCSBP and that by law, he had only 90 calendar days from the date he received this letter to submit his SBP Election Certificate.  If he did not submit his election within 90 days, he would not be entitled to survivor benefit coverage until he applies for retired pay at age 60.

3.  There is no indication in the applicant's records that he elected to participate in the RCSBP during his 90-day window of opportunity in 2005.  Further, it appears he had no dependents at the time.

4.  On 31 December 2007, the applicant married.

5.  There is no indication the applicant requested to enroll his new spouse for RCSBP coverage within 1 year of his marriage.

6.  On 14 June 2012, the applicant completed a DD Form 2656-5.  He indicated that he was married and further elected "spouse only" coverage, full amount, option B (Age 60).  

7.  On 26 June 2012, HRC returned the applicant's application without action due to not submitting his request within 1 year of his marriage.  

8.  On 15 September 2012, the applicant was transferred to the Retired Reserve at the rank of major (MAJ).

9.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component (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

10.  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.  

11.  Periodically Congress passes laws that establish open enrollment seasons which allow SBP enrollment or changes.  Public Law 108-375, enacted 28 October 2004, established an open enrollment season from 1 October 
2005 through 30 September 2006.  Open enrollment seasons are extensively publicized in Army Echoes to ensure all retirees are informed of their existence.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows he was issued his 20-year letter on 7 April 2005.  He married on 31 December 2007.  On 26 June 2012, the applicant's request to enroll in the RCSBP was returned without action because he did not submit his application within 1 year of marriage.  The applicant states his unit administrator did not properly counsel him and there were no certified retirement counselors from 2008 to 2011. 

2.  It was the applicant's responsibility to enroll his spouse in the RCSBP.  Further, it was not the unit administrator's responsibility to lay out possible future contingencies and options based on these contingencies.  The applicant knew his family situation had changed, yet he waited 5 years before attempting to enroll in the RCSBP. 

3.  There is insufficient evidence to demonstrate the existence of an error or an injustice.  While the applicant's circumstance is regrettable, he has not provided evidence that he exercised due diligence regarding RCSBP coverage for his spouse.  Therefore, in the absence of evidence to the contrary, there is no basis to recommend granting the relief sought in this application.

4.  The applicant is urged to carefully read Army Echoes, the Army bulletin periodically sent to all retirees to keep them abreast of issues concerning them.  The applicant will have the opportunity to elect to participate in the RCSBP if Congress declares an Open Season.  Such Open Seasons are highly publicized in Army Echoes.  He will also have an opportunity to enroll in the standard SBP upon reaching age 60 and applying for retirement pay. 

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)                                         AR20120021867



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ABCMR Record of Proceedings (cont)                                         AR20120021867



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