IN THE CASE OF:	  

		BOARD DATE:	    25 September 2014

		DOCKET NUMBER:  AR20140002317 


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 he believes the Defense Finance and Accounting Service (DFAS) received his DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate) within a year of his marriage.  However, DFAS contends it was not received within a year of his marriage.

3.  The applicant provides copies of:

* Social Security Account Card
* Court Judgment for Divorce, dated 29 February 1996
* DD Form 1883 (Survivor Benefit Plan Election Certificate) dated 7 May 1996
* Marriage License and Certificate, dated 1 April 1998
* Personnel Qualification Record - Enlisted, prepared on 19 December 2006
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 4 June 2007
* DD Form 93 (Record of Emergency Data), dated 31 October 2008
* Standard Form 3107 (Application for Immediate Retirement (Federal Employees Retirement System (FERS)) Sections A through G only, with final separation date of 11 May 2009
* Certificate of Birth for current spouse, issued 23 February 2010
* Checklist for Retirement (Updated 28 January 2009)
* DD Form 2656 (Data for Payment of Retired Personnel), dated 5 January 2012
* DFAS-CL 7220/148 (Retiree Account Statement) effective 22 March 2013
* Letter from Department of Veterans Affairs (VA) dated 4 June 2013
* DFAS-CL 7220/148 effective 11 September 2013
* DD Form 2656-6, dated 24 September 2013
* Letter from DFAS, dated 16 October 2013
* Letter from DFAS to applicant's Congressman, dated 27 November 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.  On 29 February 1996, the applicant received a court judgment for divorce from his spouse, Mary M.

3.  In a memorandum prepared on 19 April 1996, the applicant was notified of his eligibility to receive retired pay at age 60.  It indicates three enclosures, one of which was a Survivor Benefit Plan Summary.

4.  A DD Form 1883 was completed and signed on 7 May 1996, indicating that the applicant had stated he was not married at the time but had two daughters and two sons for which he wanted SBP coverage.

5.  A marriage license and certificate indicates that the applicant married Mary C. on 1 April 1998.  They remain married.

6.  A Standard Form 3107 shows that the applicant desired to choose a reduced survivor annuity for his spouse, Mary C. in conjunction with his planned FERS retirement on 11 May 2009.

7.  A DD Form 2656, dated 5 January 2012 indicates that the applicant was married on 1 April 1998 and elected SBP coverage for spouse only and had no eligible children.

8.  The applicant's Retiree Account Statements effective 22 March and 
11 September 2013 indicate that he has SBP coverage for children only.

9.  A DD Form 2656-6, signed by the applicant and his spouse, Mary C., on 
24 September 2013, indicates their desire for spouse only SBP coverage based on his full retired pay.

10.  In a letter dated 16 October 2013, DFAS informed the applicant that his request to change his SBP election to spouse only could not be processed because he had not submitted the request within a year of his marriage.

11.  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.

12.  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.

13.  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 RCSBP, 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.

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

15.  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, in effect, 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 he submitted his request within such timeframe.

2.  The available evidence clearly shows the applicant made a valid election when he received his 20-year letter in 1996 to provide full coverage for his dependent children.  He was not married at the time.

3.  In 1998, 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 within a year of this marriage.  There is evidence showing that he submitted a DD Form 2656 in 2012 in conjunction with his request for retired pay at age 60.  However, this was not within the 1-year time limit required by law.

4.  There have been two open seasons between 1999 and 2006.  Open seasons provide enrollment opportunities for retirees who are not fully participating in the SBP.  The applicant is advised to monitor Army Echoes for announcement of future open seasons which may be authorized by Congress.

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)                                         AR20140002317





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ABCMR Record of Proceedings (cont)                                         AR20140002317



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