IN THE CASE OF:	  

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140013227 


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 enrollment of his current spouse in the Reserve Component Survivor Benefit Program (RCSBP) in place of his child.

2.  The applicant states, in effect:

* he was not married when he received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter) and, at that time, submitted his youngest adult daughter as his SBP beneficiary
* one year later he was married and attempted to update his record through his U.S. Army Reserve (USAR) unit
* he submitted his marriage certificate through his unit G-1 to the U.S. Army Human Resources Command (HRC) in September 2007
* no one acknowledges that he submitted his marriage certificate, and apparently no records of any transactions were made
* now he is getting no help from his old unit, from HRC, or from the Defense Finance and Accounting Service (DFAS)

3.  The applicant provides:

* self-authored statement
* photocopies of DD Form 2 (U.S. Uniformed Services Identification Card - Retired) and DD Form 2765 (Department of Defense/Uniformed Services Identification and Privilege Card)
* DFAS-CL Form 7220/148 (Retiree Account Statement)
* marriage license and certificate showing the applicant's marriage on 27 July 2007
* DD Form 2656 (Data for Payment of Retired Personnel)
* 20-year letter

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 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's records show he was born on 28 September 1954.

3.  Having prior enlisted service, he was appointed as a USAR commissioned officer on 22 February 1988.  He served in a variety of stateside and overseas assignments, including deployments to Iraq.  He attained the rank of lieutenant colonel (LTC).

4.  On 8 March 2007, the applicant was issued a 20-year letter.  This letter notified the applicant he was required to make an election for the RCSBP.  His records do not show either a completed DD Form 2656-5 (RCSBP Election Certificate) or a DD Form 1883 (Survivor Benefit Plan - Election Certificate).

5.  Per information provided by DFAS, the applicant did not respond to his 20-year letter and his coverage therefore defaulted to child-only coverage.  His record contains a DD Form 93 (Record of Emergency Data) which shows his youngest daughter, Mxxxxxxx, as being the only child eligible based upon date of birth.

6.  He was married to Sxxxx E. Hxxxxxxx on 27 July 2007.  His records do not show either a DD Form 2656-5 or a DD Form 1883 (Survivor Benefit Plan - Election Certificate) completed within one year of marriage.  However, there is a DD Form 2656, which was signed on 25 October 2013, naming his wife as his sole beneficiary for RCSBP.

7.  Effective 30 September 2013, the applicant was assigned to the Retired Reserve in the rank of LTC.

8.  A review was made of the applicant's contact history with HRC.  The HRC transaction history shows 93 contacts and 11 cases.  Of these interactions, one entry, dated 9 July 2012, is shown as being related to RCSBP, and this entry records that HRC received the applicant's marriage certificate and had it filed in the applicant's official military personnel file (OMPF).

9.  The applicant provides a self-authored statement which essentially says:

* several times over the last 7 years he has attempted to have his wife added to his records and have her shown as his beneficiary for RCSBP
* he received his 20-year letter in March 2007
* he was not married until July 2007 and tried, unsuccessfully, to have his wife added to his RCSBP at that time
* after several more attempts, he was told he could add her when he retired
* when he retired he completed a DD Form 2656 showing his wife as his RCSBP beneficiary, but again he was told she could not be added
* he requests favorable consideration by the Board to remove his adult daughter and replace her with his wife

10.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

11.  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.

12.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and/or 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.  However, if a person has eligible dependents in either category and chooses to decline coverage he or she is precluded from adding subsequent dependents except during Open Season enrollment periods.

DISCUSSION AND CONCLUSIONS:

1.  Title 10, U.S. Code, section 1448(a)(5), requires a change in SBP election to be made within one year of marriage unless the applicant had no eligible beneficiaries at the time his coverage defaulted to child-only coverage.  The applicant's record is void of evidence an attempt to add his wife was made within one year of marriage. 

2.  Based upon the foregoing, there is insufficient evidence to support granting the requested relief.  However, if the applicant can show his youngest daughter, Mxxxxxxx, was not in fact an eligible beneficiary his case may be reconsidered.

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)                                         AR20140013227





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ABCMR Record of Proceedings (cont)                                         AR20140013227



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