IN THE CASE OF:  

	BOARD DATE: 19 March 2015

	DOCKET NUMBER:  AR20140010882


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) change of election from spouse to spouse and child coverage.

2.  The applicant states that he wants his son included as a beneficiary on his RCSBP.  He is disabled and receives Supplemental Security Income (SSI) and Social Security Disability Income (SSDI) payments.  His son and daughter were adopted in Costa Rica on 23 March 1993.  He received a Virginia adoption decree on 7 August 1997.  In 2003 he executed a request for a spouse and dependent RCSBP.  However, he was given a spouse only RCSBP based on his DD Form 1883 (Survivor Benefit Plan Election Certificate) submitted in 1990 prior to the adoption of his children.  As a Reservist, he was unaware that his child's dependency status hinged on the DD Form 1883.  When he attempted to correct this error, he was directed to apply to this Board.

3.  The applicant provides copies of:

* DD Form 1883 dated 26 February 1990
* Certificate of Translation Accuracy, dated 3 April 1996 (12 pages)
* Final Order of Adoption, Circuit Court of Arlington, Virginia, dated 7 August 1997
* Letter from a medical doctor, dated 23 December 2003
* DD Form 2656 (Data for Payment of Retired Personnel) dated                29 December 2003
* Letter from the applicant to the Army Reserve Personnel Command, dated   13 January 2005
* DD Form 2656, dated 13 January 2005
* Letter from the Defense Finance and Accounting Service (DFAS) to the applicant, dated 27 October 2009
* Letter from Retirement Operations, Office of Personnel Management, to the applicant, dated 4 May 2010
* Letter from the Social Security Administration, Office of Disability Adjudication and Review, to the applicant, dated 18 July 2011 (9 pages)
* Letter from DFAS to the applicant, dated 19 October 2011
* Letter from the Social Security Administration, Supplemental Security Income, Notice of Change in Payment, to the applicant dated 1 December 2013
* Letter from the applicant to DFAS, dated 28 February 2014
* Letter from DFAS to the applicant, dated 7 April 2014

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 25 April 1945.  Accordingly, he reached age 60 on 25 April 2005.

3.  The applicant received a Twenty-Year Letter dated 26 January 1990.  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.

4.  On 26 February 1990, the applicant completed a DD Form 1883 wherein he indicated:

	a.  he was married;
	
	b.  he wanted spouse only coverage based on his full retired pay;

	c.  his election of Option C for immediate coverage; and

	d.  he did not have any dependent children.

5.  The applicant has provided documents showing that the First Family Court of San Jose, Costa Rica, authorized the final adoption of two children, who were approximately 4 and 6 years of age, by the applicant and issued a Decree of Final Adoption on 2 April 1993.

6.  The applicant has provided documents showing that the State of Virginia, Circuit Court of Arlington County, issued a Final Order of Adoption dated 
7 August 1997.

7.  The applicant has provided a document, dated 23 December 2003, showing that a medical doctor diagnosed his daughter with having bipolar disorder mixed with attention deficit hyperactive disorder.

8.  On 29 December 2003, the applicant completed a DD Form 2656 wherein he listed his spouse and two children as dependents and elected RCSBP coverage for the same.

9.  On 13 January 2005, the applicant submitted another DD Form 2656 in conjunction with his request to be transferred to the Army of the U.S. (AUS) Retired List.

10.  Orders P01-580781, U.S. Army Reserve Personnel Command, dated 
27 January 2005, announced the applicant's placement on the AUS Retired List effective 25 April 2005, in the rank of colonel, pay grade O-6.

11.  In a letter dated 28 February 2014, the applicant requested that DFAS correct what he perceived to be an error in that his SBP election was for spouse only coverage vice his spouse and child.

12.  On 7 April 2014, DFAS responded to the applicant's inquiry informing him that his original DD Form 1883, which he completed and signed in 1990, had not listed any children.  Because these children, who were born prior to 1990, were excluded at the time of his RCSBP election, they were also excluded from his SBP election.  The applicant was advised that he could complete an application to this Board for a correction to add his children.

13.  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.

14.  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.

15.  Title 10, U.S. Code (10 USC), section 1447 (11) defines a dependent child for SBP as a person who is unmarried and is incapable of self support because of a mental or physical incapacity existing before the person's eighteenth birthday or incurred on or after that birthday but before the person's twenty-second birthday, while pursuing a full-time course of study or training; and is the child of a person to whom the Plan applies, including an adopted child who lived with that person in a regular parent-child relationship.

16.  10 USC, section 1448(5) provides for participation by a person marrying after retirement, etc. [interpreted to include a person who acquires dependent children after retirement].  A person who has no children upon becoming eligible to participate in the Plan but who later acquires a dependent child may elect to participate in the Plan providing such election is in writing, signed by the person making the election and received by the Secretary concerned within 1 year after the date on which that person acquires that dependent child or children.

17.  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.  Extensive publicity was given in Army Echoes.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he made an RCSBP change of election from spouse to spouse and child coverage.
2.  The available evidence shows that the applicant was issued a 20-Year Letter in January 1990 and made an RCSBP spouse only election within 90 days of that letter.  At the time he had no dependent children.  In 1993 he adopted two children in Costa Rica.  In 1997 he received a final decree of adoption in the State of Virginia.  He attempted to add these two children to his SBP election in 2003 and again in 2005 in conjunction with his request for retired pay upon reaching 60 years of age.  DFAS maintained his original election of spouse only because the children were born prior to the original RCSBP election, a request that Army Echoes would have pointed out.

3.  The available evidence clearly shows that the applicant failed to submit a change of election request within a year of adopting his two children.  The applicant argues that he was unaware that his child's dependency status hinged on the election he made in 1990 on his DD Form 1883.  DFAS informed him of this fact in 2014 and advised him to come to this Board for assistance.

4.  However, in view of the above, and as a matter of equity it would be appropriate to correct his military records to show that he enrolled his son in the SBP during the 2005-2006 open season.

BOARD VOTE:

___x____  ____x___  ___x____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:






	a.  showing that he had properly submitted a change of SBP election during the 1 October 2005 open season; and

	b.  showing that this election was properly processed.



      _____________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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ABCMR Record of Proceedings (cont)                                         AR20140010882



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