IN THE CASE OF: 

		BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130014206 


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 military records by changing his Reserve Component Survivor Benefit Plan (RCSBP) election from children only to spouse coverage.

2.  The applicant states:

* he wants his spouse added to the SBP
* at the time he filed retirement papers he was single
* he was unaware he would need to file when he later married
* he discovered that his current wife was not on the SBP when he filed papers to begin drawing retirement
* he sent a request to enroll his wife in the SBP in May 2012    

3.  The applicant provides:

* Marriage certificate
* National Guard Bureau Form 22 (Report of Separation and Record of Service)
* Retirement orders, dated 18 January 2012
* Certificate of Retirement
* Letter, dated 18 January 2012, from the U.S. Army Human Resources Command, Fort Knox, KY
* Survivor Benefit Plan Election Change Certificate, dated 24 July 2013
 

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 on 11 November 1952.  Having prior active duty in the U.S. Marine Corps Reserve, he entered the Ohio Army National Guard (OHARNG) as a commissioned officer on 11 August 1988.  

3.  On 30 March 1999, he received his notification of eligibility for retired pay at age 60 (20-year letter).

4.  His DD Form 1883 (SBP Election Certificate), dated 10 April 1999, shows he enrolled in the RCSBP for children only coverage, option C, full base amount.  This form also shows he was not married at the time.

5.  He was honorably discharged from the OHARNG on 1 June 1999 and he was transferred to the Retired Reserve.

6.  He married in February 2003.

7.  He turned age 60 on 11 November 2012 and he was placed on the retired list in the rank of major.

8.  He provides a Survivor Benefit Plan Election Change Certificate, dated 
24 July 2013, which shows he requested a change in his current coverage due to marriage.  He elected spouse only coverage.

9.  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.



10.  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.  

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.  Every issue of Army Echoes, the Army bulletin published and mailed to retirees and gray-area retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army, contains the information, “Remember:  You are responsible for updating your retired pay file information at DFAS-CL…within one year of the event if you marry, remarry…and need to make or update a Survivor Benefit Plan (SBP) election.”

13.  Congress periodically offers retirees an opportunity to enroll or increase SBP coverage outside the usual time constraints.  Extensive publicity is given in Army Echoes.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 1883 shows he enrolled in the RCSBP for children only coverage on 10 April 1999.  

2.  The applicant married in February 2003 and he had 1 year from his date of marriage to enroll in the RCSBP for spouse coverage.

3.  Since there is no evidence that shows the applicant attempted to add his spouse to his RCSBP within 1 year of his marriage, regrettably, there is no basis for granting the applicant's request.  The applicant should continue to read Army Echoes which would alert him to the possibility of enrolling his spouse in the SBP during an Open Enrollment Season if and when Congress should declare another Open Enrollment 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)                                         AR20130014206





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ABCMR Record of Proceedings (cont)                                         AR20130014206



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