IN THE CASE OF:	   

		BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130006044 


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, his records be corrected to show he added his spouse to his Reserve Component Survivor Benefit Plan (RCSBP) and SBP election within one year of their marriage.

2.  The applicant states he submitted a beneficiary change to reflect his spouse after his marriage on 20 August 1999, and prior to his retirement on                    17 December 2012.  

3.  The applicant provides:

* DD Form 2656-5 (RCSBP Election Certificate)
* DD Form 2894 (Designation of Beneficiary Information)

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.  Having prior service in the Regular Army, the applicant was appointed as a Reserve Warrant Officer of the Army on 7 December 1988.  He was promoted to the rank of chief warrant officer two (CW2) on 12 June 1991.

3.  On 13 August 1997, he received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) from the Alabama State Military Department, Office of the Adjutant General.  

4.  On 13 September 1997, he submitted a DD Form 1883 (Survivor Benefit Plan Election Certificate) indicating he was not married and had no dependent children.  He elected coverage for a natural person with insurable interest further identified on the form as his stepson.

5.  On 20 August 1999, the applicant married Txxxxx P. in Montgomery, AL.

6.  On 13 February 2012, he submitted a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated he did not have any dependent children and he elected coverage for spouse only.  Txxxxx P. Wells is listed as the insurable interest beneficiary.

7.  The applicant retired from the U.S. Army Reserve and was placed on the retired list on 17 December 2012, in the rank of CW2.

8.  On 15 February 2013, he submitted a DD Form 2656-5.  He elected Option C (Immediate Annuity) for spouse only coverage, full retired pay.

9.  A review of the applicant's Retiree Account Statement for March 2013 shows SBP coverage for a natural interest person.

10.  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.  Elections are made by category, not by name.
 
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 1 October 2005 to 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that he be permitted to elect coverage for his spouse under the SBP has been carefully considered.

2.  Unfortunately, it appears the applicant was not reasonably diligent with respect to enrolling his spouse in SBP coverage.  The evidence shows the applicant married in August 1999; however, he did not query DFAS about SBP enrollment until February 2012, well over 12 years after his marriage to his spouse.  This lack of diligence resulted in his untimely request for coverage.  

3.  When the applicant failed to add his spouse within one year of their marriage, he irrevocably forfeited coverage for her except during a Congressionally-approved open enrollment period.  There has not been an Open Season since the last one which expired on 30 September 2006.  Enrollment of the spouse as beneficiary will not be possible until another Open Season is authorized.  He should read Army Echoes, the Army bulletin published to keep retirees informed of their rights and privileges and to inform them of developments in the Army to learn when the next Open Season may be.

4.  In view of the foregoing evidence, he is not entitled to the 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)                                         AR20130006044





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ABCMR Record of Proceedings (cont)                                         AR20130006044



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