IN THE CASE OF:
BOARD DATE: 18 December 2014
DOCKET NUMBER: AR20140007697
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 made a Reserve Component Survivor Benefit Plan (RCSBP) election for spouse coverage.
2. The applicant states when he received his Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter), he was not counseled or briefed on survivor election benefits or the importance of making those elections. He contends that he just discovered that his wife is not a beneficiary for his RCSBP.
3. The applicant provides no additional documentation.
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 applicants 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 applicants 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 2 May 1963. Accordingly, he will reach age 60 on 2 May 2023.
3. The applicant received a Twenty-Year Letter dated 12 October 2000. Paragraph 4 of this letter informed him that he was eligible to participate in the RCSBP and to provide an annuity for his spouse and other eligible beneficiaries. He was also informed that by law, he had only 90 calendar days from the date he received this letter in which to submit his RCSBP election. He was also advised that if he did not submit an election within this 90-day period, he would not be eligible to do so until he made application for retired pay at age 60. He was warned that if he waited until attaining age 60 to apply and died prior to reaching age 60, his survivors would not be entitled to RCSBP benefits. Furthermore, the letter states a DD Form 1883 (Survivor Benefit Plan Election Certificate) and detailed information was enclosed with the letter.
4. 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.
5. 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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If the member dies before reaching age 60, premiums are deducted from the annuity.
6. 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 available evidence shows that the applicant received a Twenty-Year Letter based on his completion of 20 qualifying years. That letter clearly and completely explained the available options and requirements of law concerning submission of his RCSBP election
2. There is no available evidence showing he made any attempt to submit an RCSBP election within 90 calendar days of receiving his Twenty-Year Letter. His argument that he was not counseled concerning the submission of an RCSBP election is not sufficiently convincing. He must bear the responsibility for not following the specific instructions provided to him in his Twenty-Year Letter. If he did not understand those instructions, he should have sought assistance at that time.
3. There is no evidence of error or injustice in this case. The applicant will have the opportunity to submit an RCSBP election when he reaches 60 years of age and applies for retired pay.
4. There have been three open seasons between 1991 and 2006. Unfortunately, there is no way of knowing when, or if, another open season will be made available. However, should an open season become available, the applicant would then have an opportunity to make an SBP election prior to reaching age 60.
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) AR20070016793
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140007697
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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