IN THE CASE OF:	  

		BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140007406 


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 Reserve Component Survivor Benefit Plan (RCSBP) annuity beneficiary election to show he elected spousal coverage versus coverage for a Natural Interest Person (NIP).  He further requests the premiums he paid to date for NIP coverage be applied to spousal coverage.

2.  The applicant states, in effect, he completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) at the time he received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  He was unmarried, so his sister was added as an NIP with an insurable interest.  He married in 2003, but does not remember receiving notice he had only one year to make a change in election.  He believed his wife was covered as an NIP until his Retirement Services Officer (RSO) informed him otherwise.  He states he requested the Defense Finance and Accounting Service (DFAS) allow him to change beneficiaries, but his request was denied.

3.  The applicant provides:

* DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate)
* his marriage certificate
* a letter from DFAS with enclosure
* 2 pictures of Certificates
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 2 DFAS printouts
* DFAS-CL Form 7220/148 (Retiree Account Statement)
* AHRC Form 249-2-E (Chronological Statement of Retirement Points)
* his retirement order

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 December 1945.  He was commissioned as a U.S. Army Reserve Officer on 10 August 1967.

3.  In a memorandum prepared on 27 August 1997, he received his 20-Year Letter, which notified him of his eligibility to receive retired pay at age 60.  It indicates two enclosures, one of which was detailed information concerning participation in the RCSBP.

4.  A DD Form 1883 was completed and signed on 29 May 1998, indicating he was not married but showed the selection of his sister as an NIP, for whom he wished RCSBP coverage.

5.  A marriage license and certificate indicates he married his spouse on             8 November 2003.  They remain married.

6.  He submitted his DD Form 108 (Application for Retired Pay Benefits) on         9 August 2004, and his application was approved on 17 August 2005.  He was placed on the Retired List at age 60, with an effective date of 12 December 2005.

7.  On a DD Form 2656-6, dated 29 May 2013, he elected RCSBP coverage for spouse only.  In a letter dated 27 January 2014, DFAS informed him that his request to change his RCSBP election to spouse only could not be processed because he had not submitted the request within a year of his marriage.

8.  Public Law 92-425, the Survivor Benefit Plan (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.

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; (C) elect that a beneficiary receive an annuity immediately upon their death if before 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 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.

11.  Public Law 103-337, enacted 5 October 1994, allowed SBP insurable interest participants whose beneficiary is not their former spouse to voluntarily terminate their participation in the SBP.  Any such termination shall be made by a participant by the submission to the Secretary concerned of a written request to discontinue participation in the SBP.  Such participation shall be discontinued effective on the first day of the first month following the month in which the 
request is received.  Once participation is discontinued, benefits may not be paid in conjunction with the earlier participation in the SBP and premiums paid may not be refunded.

12.  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.  Open Seasons are periodically authorized by Congress and allow eligible non-participants to enroll in SBP or, if participating, increase their level of participation.

13.  Army Echoes, the Army bulletin published, and now online, for retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army, routinely contains the guidance, “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.”

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.

2.  The available evidence clearly shows he made a valid election when he received his 20-Year Letter in 1998 in order to provide full coverage for his sister as an NIP with an insurable interest.  He was not married at the time.

3.  In 2003, when he 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 evidence that shows he attempted to submit an election, or that such an election was received or processed within a year of his marriage.  There is evidence showing he submitted a DD Form 2656-6 in 2013; however, that submission was after the 1-year time limit required by law.

4.  Open seasons provide enrollment opportunities for retirees to make changes in their previous elections for SBP.  The applicant is advised to monitor Army Echoes for announcement of future open seasons which may be authorized by Congress.

5.  Based upon the foregoing, there is no basis upon which to grant 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)                                         AR20140007406





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ABCMR Record of Proceedings (cont)                                         AR20140007406



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