BOARD DATE: 19 March 2015
DOCKET NUMBER: AR20140013372
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 his election in the Reserve Component Survivor Benefit Plan (RCSBP) be changed from spouse-only to spouse and children.
2. The applicant states, when he made his election, he was poorly advised. He now realizes by choosing spouse-only, his children would receive no benefits until age 18 should both he and his spouse pass away.
3. The applicant provides his 20-Year Letter and his completed DD Form 2656-5 (RCSBP Election Certificate).
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's records show he was born on 19 July 1964.
3. Having had prior service, he was appointed as a Mississippi Army National Guard (MSARNG) commissioned officer on 16 September 1998. He served in a variety of stateside and overseas assignments, including deployments to Bosnia and Iraq. He attained the rank of lieutenant colonel (LTC).
4. On 2 September 2008, 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 show he completed a DD Form 2656-5 electing spouse-only coverage. This form informed him he was making a permanent election that cannot be changed unless authorized by law.
5. On 27 March 2009, the applicant was honorably separated from the MSARNG and transferred to the Retired Reserve, having completed over 23 years of service.
6. 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.
7. 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.
8. Once a member elects either option B or option C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in RCSBP; the options automatically roll into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60.
DISCUSSION AND CONCLUSIONS:
1. Upon receipt of his 20-Year letter, the applicant completed a DD Form 2656-5 wherein he elected to participate in the RCSBP for spouse-only, Option C (immediate coverage), based on the full amount of his retired pay.
2. The applicant now states he was not properly counseled in 2008. Yet, when he completed this form, he acknowledged the decision he made with respect to participation in this SBP was a permanent irrevocable decision and he should consider his decision and its effect very carefully. Further, he provides no evidence, such as a letter from the retirement services officer who reviewed his DD Form 2656-5 prior to finalization, which supports his contention that he did not receive clear and complete information on the implications of his selection for his children.
3. Based upon the foregoing, there is insufficient evidence to support granting the requested 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) AR20140013372
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140013372
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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