IN THE CASE OF: 

	BOARD DATE: 8 October 201

	DOCKET NUMBER:  AR20150001999


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 correction of his military records to show he made a Reserve Component Survivor Benefit Plan (RCSBP) election for spouse and children coverage effective the date of his marriage.

2.  The applicant states he received his notification of eligibility for retired pay at age 60 (Twenty-Year Letter) on 31 May 1991 and made his election for Reserve Component Survivor Benefits Plan (RCSBP) within the necessary timeframe.  After submitting the required paperwork, he was advised that the person he identified as his beneficiary was not eligible.  Accordingly, on 14 April 1992, the submission was changed.  On 13 February 1993, he married that same person.  He subsequently provided all the necessary documents to his unit administrator for the marriage and the birth of their child to update his RCSBP.  He assumed that all the necessary changes would be made.  In January 2010, when he applied for retirement, the retirement services officer filled in the option for spouse coverage.  Again, he assumed everything had been done to protect his family.  In February 2014, he received a letter informing him that his spouse would not receive SBP benefits and advised him of what he needed to do before reaching 65 years of age.  He went with his spouse to get new identification cards.  At that time, he asked why his spouse was not listed and was told she was not a beneficiary.

3.  The applicant provides copies of:

* Twenty-Year Letter, dated 31 May 1991
* DD Form 1883 (Survivor Benefit Plan Election Certificate), dated             25 August 1991
* DD Form 1883, dated 14 April 1992
* State of Michigan Marriage License and Certificate, dated in February 1993
* State of Michigan Certificate of Live Birth, dated 3 October 1993
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) effective 31 March 1997
* NGB Form 23A (Army National Guard Current Annual Statement) prepared 22 April 1997
* DD Form 2656 (Data for Payment of Retired Personnel) dated 20 August 2009
* DD Form 108 (Application for Retired Pay Benefits) dated 20 August 2009
* Standard Form 1199A (Direct Deposit Sign-Up Form) dated 20 August 2009

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 X January 1950.  Accordingly, he reached 60 years of age on X January 2010.

3.  The applicant received a Twenty-Year Letter dated 31 May 1991.  This letter made no mention of the RCSBP other than to list as an enclosure a summary of SBP benefits.

4.  A DD Form 1883, dated 25 August 1991, shows the applicant indicated he was not married and had no children.  However, he listed as an insurable interest person, his future spouse.  He checked option "C" for immediate coverage based on his full retired pay.

5.  A DD Form 1883, dated 14 April 1992, shows the applicant indicated he was not married and had no children.  He checked option “A” to defer his election.  He did not indicate any insurable interest person.

6.  A State of Michigan Certificate of Marriage shows the applicant married on 
13 February 1993 to the person he previously listed as an insurable interest person on his DD Form 1883 dated in 1991.

7.  A State of Michigan Certificate of Birth dated 3 October 1993, shows the applicant’s spouse gave birth to a son on XX September 1993.

8.  An NGB Form 22, effective 31 March 1997, shows the applicant was transferred to the Retired Reserve.

9.  An NGB Form 23A, prepared on 22 April 1997, shows the applicant had completed 26 years of qualifying service for retired pay at 60 years of age.

10.  On 20 August 2009, the applicant completed DD Form 2656 requesting retirement effective X January 2010, the date of his 60th birthday.  He also identified his spouse and child as dependents and elected SBP coverage for both based on his full retired pay.  The form was signed by the applicant and witnessed the same day.

11.  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.

12.  Public Law 95-397, the Reserve Component SBP (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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.



DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that the applicant received a Twenty-Year Letter based on his completion of 20 qualifying years.  The evidence shows that the applicant submitted DD Form 1883 within the required 90 day period requesting coverage for an insurable interest person who he later married.

2.  The evidence shows that in April 1992, a second DD Form 1883 was processed showing the applicant did not have any eligible dependents but that he had requested option “A” to defer his election.  This form appears to have been drafted in response to the applicant being advised that he had no insurable interest beneficiary.  Accordingly, it appears the applicant had no RCSBP coverage in place and was authorized to make an SBP election in conjunction with the submission of his retirement application.

3.  In February 1993 the applicant married the individual he originally indicated as having an insurable interest.  In September 1993, they had a child.

4.  In August 2009, just 5 months prior to his 60th birthday, the applicant applied for retired pay and elected SBP coverage for his spouse and child.  However, it does not appear this form was processed by the Defense Finance and Accounting Service (DFAS).

5.  The evidence shows the applicant did not have eligible dependents when he received his Twenty-Year Letter.  When he became eligible to apply for retired pay, he had eligible dependents and submitted an appropriate election for SBP coverage.  Accordingly, this request should have been processed.

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 showing that the applicant, upon receipt of his Twenty-Year Letter, did not elect insurable interest coverage, but instead deferred his election which was timely received and processed.  He then elected to participate in the Survivor Benefit Plan at the time of his request for retired pay and his election was accepted and processed by the appropriate office in a timely manner.




      ___________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)                                         AR20150001999



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