IN THE CASE OF:	  

		BOARD DATE:	  15 July 2014

		DOCKET NUMBER:  AR20130015598 


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, in effect:

	a.  On 26 July 2006, he completed a DD Form 2656 (Data for Payment of Retired Personnel) and elected spouse-only SBP coverage.  This information was completed with his retirement package.

	b.  In July 2006, he received a letter from the U.S. Army Human Resources Command (HRC) Retirements and Annuities Supervisor stating HRC received his request for enrollment in the RCSBP open season.  In February 2007, his retired pay account shows SBP coverage for his spouse.

	c.  He is not sure when it defaulted to display coverage for a child.  When he retired he completed the DD Form 2656 for his spouse, not his children, because his youngest child was age 26 at the time.

	d.  He would like the SBP coverage to list his spouse as it originally did in February 2007.

3.  The applicant provides:

* DD Form 2656
* Retiree Account Statements
* letter from HRC, dated 14 July 2006
* letter from the Defense Finance and Accounting Service (DFAS), dated 21 February 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.  The applicant's military records are not available for review.  This case is being considered using reconstructed records that primarily consist of the records provided by the applicant.

3.  He was born on 13 February 1947.

4.  On an unknown date, he received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

5.  His DD Form 1883 (SBP Election Certificate), dated 7 February 1988, 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.

6.  He married on 29 May 1989.

7.  A DD Form 2656-9 (SBP and RCSBP Open Enrollment Election), dated 25 January 2006, shows he elected spouse-only coverage.

8.  On 14 July 2006, HRC sent him a letter that stated:

* his request for enrollment in the RCSBP open season was received
* his date of enrollment for purposes of calculating the monthly deduction at age 60 is the date of his initial eligibility for enrollment in the RCSBP
* that date may be either the date he was issued his 20-year letter or the date he gained the currently designated annuitant
* this RCSBP will be effective 2 years from the date of enrollment or the starting date of the open enrollment season (1 October 2005), whichever is later

9.  He provided a DD Form 2656, dated 26 July 2006, which shows he elected SBP for spouse-only coverage.

10.  He reached age 60 on 13 February 2007 and he was placed on the Retired List.

11.  He provided a letter from DFAS, dated 12 July 2013, which states:

* their records indicate he elected RCSBP child coverage on his DD Form 1883 on 7 February 1988
* at that time he was not married
* on his original DD Form 2656 he elected SBP for his spouse and he indicated his marriage occurred on 19 May 1989
* there is a 1-year window of eligibility
* notification, along with documentation of the event, needed to have been made in order to process a request for coverage
* in his case, his branch of service needed to be notified no later than 29 May 1990
* his spouse coverage cannot be implemented

12.  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.

13.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Once an RCSBP election is made, it rolls over into the standard SBP.  A new election cannot be made at age 60.

14.  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.

15.  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, prior to 2014 contained the information:

Remember:  You are responsible for updating your retired pay file information at DFAS-CL, using the London, KY, mailing address below, within one year of the event if you marry, remarry, have a child, are widowed or divorced and need to make or update a Survivor Benefit Plan (SBP) election.

16.  Public Law 101-189, enacted 29 November 1989, established an           Open Season to be conducted 1 October 1991 (but deferred to 1 April                1992) through 30 September 1992.  It was not offered to gray-area retirees.  Extensive publicity was given in Army Echoes.

17.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  It was offered to retirees (standard SBP) and to gray-area retirees (RCSBP).  The retiree must have paid monthly premiums starting on the date of enrollment and a one-time, lump sum enrollment premium.  Extensive publicity was given in Army Echoes.  Army Echoes also warned that for a retiree with a high number of years since first being able to enroll a beneficiary in the SBP and whose retired pay was fairly high, the enrollment premium alone could exceed $50,000.

18.  Public Law 108-375, enacted 28 October 2004, established an open enrollment season from 1 October 2005 through 30 September 2006.  It was not offered to gray-area retirees.  Extensive publicity was 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 7 February 1988.  RCSBP enrollees do not make a new election upon turning age 60.

2.  The applicant married in May 1989 and he had 1 year from his date of marriage to enroll in the RCSBP for spouse coverage.

3.  Although he attempted to enroll in the SBP in the open season in July 2006, he couldn't participate in that open enrollment season because he wasn't age 60 and wasn't receiving retired pay at the time.  That open season was not offered to gray-area retirees.  He would have been eligible to enroll his spouse for coverage during the 1 March 1999 through 29 February 2000 open season as that one was open to gray-area retirees.

4.  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 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)                                         AR20130015598



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ABCMR Record of Proceedings (cont)                                         AR20130015598



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