IN THE CASE OF:	  

		BOARD DATE:	  6 August 2014

		DOCKET NUMBER:  AR20130018193 


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 his military records be corrected to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage from spouse only to spouse and children within 1 year of the birth of his son.  

2.  The applicant states he elected spouse only coverage for the RCSBP on 
31 August 1997 after receipt of his 20-year letter.  His son was born after that election was made and he did not receive any counseling or information about the procedure to add him to his SBP coverage.  If he had received proper counseling by his command he would have made the change in a timely manner. He discovered the error while attending a pre-retirement seminar on 18 August 2012 and per guidance from the staff there, he attempted to correct the error when he submitted his DD Form 2656 (Data for Payment of Retired Personnel) on 29 August 2012.

3.  The applicant provides:

* his 20-year letter
* DD Form 1883 (SBP Election Certificate)
* his son's birth certificate
* DD Form 2656, dated 29 August 2012 


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.  He previously served 7 years and 1 month in the Regular Army in an officer status.  He was commissioned in the U.S. Army Reserve (USAR) on 1 August 1982 and served continuously until his retirement.

3.  On 30 October 1996, he was notified he had completed the required years of service for eligibility for retired pay on application at age 60 (20-year letter).

4.  On 6 September 1997, the applicant completed a DD Form 1883.  His date of birth is shown as 28 March 1953.  He indicated he: 

* was married and had no children 
* elected spouse only RCSBP coverage based on the full amount of his retired pay under Option C (immediate coverage)

5.  On 13 March 2002, his son was born.

6.  On 1 July 2003, the applicant was transferred to the Retired Reserve.  He had completed 28 years of qualifying service for retired pay at age 60.

7.  On 29 August 2012, he completed a DD Form 2656.  In item 26 (Beneficiary Category(ies)) he elected coverage for spouse and child(ren) and in item 27 (Level of Coverage) he elected coverage based on full gross pay.

8.  On 28 March 2013, he was placed on the U.S. Army Retired List.

9.  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; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Once a member elects either option B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  If RCSBP option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to 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.  The Defense Finance and Accounting Service interprets the phrasing of the first sentence of this section to read, "…is not married or has no dependent child."

11.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  The retiree must have paid 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 elected to participate in the RCSBP with spouse only coverage, Option C after receiving his 20-year letter.  A little over 5 years later his son was born.  He would have been able to add his son to his RCSBP coverage.  However, the law specifically states that he must submit a request for such a change within 1 year after the date the dependent is acquired.

2.  He contends he did not receive any counseling or information about the procedure to add his son to his SBP.  However, he was a lieutenant colonel in an active status at the time his son was born.  Therefore, it is reasonable to conclude the means to obtain information were available to him.  There is no evidence he sought guidance regarding SBP coverage upon the birth of his son or that any government official provided incorrect advice.  There is no evidence that he attempted to change his election during the 2005-2006 Open Season.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting 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)                                         AR20130018193



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ABCMR Record of Proceedings (cont)                                         AR20130018193



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