IN THE CASE OF:
BOARD DATE: 18 December 2014
DOCKET NUMBER: AR20140016094
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 record to show he elected Reserve Component Survivor Benefit Plan (RCSBP) coverage for his spouse, effective within one year of their marriage.
2. The applicant states when he received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), he was not married. Therefore, when he filled out his DD Form 2656-6 (SBP Election Change Certificate) in 2001, he chose "child only" coverage.
3. The applicant provides his marriage license and 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 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 14 May 1963. On 18 October 1992, after prior service in the Regular Army, the applicant enlisted in the U.S. Army Reserve (USAR). On 15 February 2002, he was appointed as a Reserve warrant officer.
3. On 21 November 2001, he received his 20-Year Letter. A DD Form 1883 (SBP Election Certificate) was listed as an enclosure to the letter; however, a copy of the DD Form 1883 was not contained in his available record and a copy was not available at the Defense Finance and Accounting Service (DFAS).
4. On 22 February 2005, he married his spouse, Jeanette.
5. 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. Changes in SBP options are not authorized except in specific instances as authorized by law.
6. Army Echoes is the Army bulletin published and mailed to retirees and gray-area retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. The bulletin provided a website as well as telephone numbers concerning "pay inquiries and update of pay or SBP records in case of death, divorce or remarriage." It provides that members are responsible for updating pay files information within 1 year if they marry and need to make or update an SBP election.
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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.
8. 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 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 dependent children.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence and the applicant did not provide any evidence that shows he attempted to change his RCSBP election within one year of the date of his marriage.
2. The applicant is advised that his only opportunity to add his wife will come during the next Open Season, as periodically authorized by Congress. Open Seasons are announced in Army Echoes, which he should currently be receiving, and/or he can obtain additional information on SBP Open Seasons from the Retirement and Annuitant Pay Section of the DFAS website, located on the internet at http://www.dod.mil/dfas/ money/ retired/ index.htm.
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) AR20140016094
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ABCMR Record of Proceedings (cont) AR20140016094
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