IN THE CASE OF:	  

		BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20130004335 


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, in effect, correction of his military records to show he elected Reserve Component Survivor Benefit Plan (RCSBP) coverage for his spouse.

2.  The applicant states when he married on 20 May 2007, a change to his RCSBP election was submitted but not put into his file.  He discovered this error during a review of his records when he applied for retirement; however, because of the "1-year rule," he was not allowed to make an RCSBP election for spousal coverage.  He believes that this rule is unjust.  He is married and has no dependent children.  He wishes to have his wife legally recorded as the sole beneficiary for his RCSBP.

3.  The applicant provides copies of:

* His spouse’s Certificate of Birth, issued 1 March 1979
* DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 30 March 1998
* Marriage Certification, dated 22 May 2007

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.  Military records show the applicant:

	a.  enlisted in the Regular Army on 30 September 1974 after a short period in the delayed entry program;

	b.  after a short break in service, in February 1981, he joined the Army National Guard (ARNG); and

	c.  was issued his 20-year letter, on 3 February 1998.

3.  On 30 March 1998, the applicant submitted a DD Form 1883 wherein he elected full SBP coverage for his daughter, then age 13.  He indicated that he was not married at the time.  He also elected option C for immediate coverage.

4.  The applicant's marriage certification shows he was married on 20 May 2007. There is no available documentation showing he submitted or attempted to submit an SBP election within a year of this marriage.

5.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 27 March 2012, shows the applicant was transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserve).  He was age 56 at the time.

6.  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.

7.  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.
8.  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.

9.  Public Law 101-189, enacted 29 November 1989, established an SBP Open Season to be conducted 1 October 1991 through 30 September 1992.

10.  Public Law 105-261, enacted 17 October 1998, established an SBP Open Season to be conducted 1 March 1999 through 29 February 2000.

11.  The National Defense Authorization Act for Fiscal Year 2005 established an SBP Open Enrollment period to be conducted 1 October 2005 to 30 September 2006.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he elected RCSBP coverage for his spouse within a year of their marriage.  He argues that the 1-year rule is unjust because it did not allow him to make this election.

2.  The available evidence clearly shows the applicant made a valid election when he received his 20-year letter in 1998 to provide full coverage for his dependent daughter.  He was not married at the time.  Since then, his daughter has become an adult and is no longer a qualified dependent.

3.  In 2007, when the applicant married, he had a 1-year period in which to submit an RCSBP election to provide coverage for his spouse.  Unfortunately, there is no available documentary evidence showing that the applicant attempted to submit an election, or that such an election was received or processed.  Therefore, he is no longer eligible to submit an election unless another open season is established.

4.  There have been three open seasons between 1991 and 2006.  Unfortunately, there is no way of knowing when, or if, another open season will be made available.

5.  In view of the above, the applicant's request should be denied.


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)                                         AR20130004335



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ABCMR Record of Proceedings (cont)                                         AR20130004335



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