IN THE CASE OF:  	  

		BOARD DATE:  13 October 2015	  

		DOCKET NUMBER:  AR20150003739 


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 wife be enrolled in the Survivor Benefit Program (SBP).

2.  The applicant states:

* he was transferred to the Retired Reserve in September 1999 but he was not married at the time; he requested Reserve Component SBP (RCSBP) for his child who was a minor 
* he married his spouse in January 2005; shortly thereafter, they went to Fort Buchanan PR  to obtain an ID card
* they provided a copy of their  marriage certificate, updated the Defense Eligibility Enrollment Reporting System (DEERS) and they were told the SBP was taken care of; they left Fort Buchanan with the understanding that this was done
* in October 2014, he completed a DD Form 2656 (Data for Payment of Retired Pay) in connection with application for retired pay at age 60
* he chose spouse SBP coverage and submitted the very same marriage certificate he previously submitted at Fort Buchanan 
* he became age 60 in November 2014 and when he received his Retiree Account Statement he was surprised that there was no SBP coverage for his wife; additionally, all his children have aged off
* he made several calls to the Defense Finance and Accounting Service (DFAS) and the U.S. Army Human Resources Command (HRC) only to find out that his wife was never enrolled
* they were given  assurances by the DEERS office that the SBP was taken care of 

3.  The applicant provides:

* Marriage certificate
* Retiree Account Statement 
* Copies of faxes
* DD Form 2656
* Retirement order 

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 28 November 1954.

3.  Having had prior service, the applicant was appointed as a commissioned officer and entered active duty on 27 September 1978.  He completed the Engineer Basic Course.  He served in a variety of stateside or overseas assignments.

4.  He was honorably discharged from active duty on 26 January 1993 by reason of a reduction in authorized strength.  He was transferred to a troop program unit of the U.S. Army Reserve (USAR). 

5.  Following his discharge from active duty, he was appointed as a Reserve commissioned officer of the Army.  He served with the 87th Division in Birmingham, AL and he was promoted to lieutenant colonel (LTC). 

6.  On 6 May 1999, the USAR Command, St. Louis, MO, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

7.  On 8 June 1999, the applicant completed and submitted a DD Form 1883 (SBP Election Certificate).  He indicated he was not married but had dependent children.  He listed his children as Samuel (born in September 1981), Sergio (born in November 1983), and Samantha (born in April 1992).  He elected "Children only" RCSBP under Option C (immediate coverage) based on a reduced amount ($434.00).  He and a witness authenticated this form with their signatures. 

8.  On 14 September 1999, the applicant was issued orders transferring him to the Retired Reserve effective 14 October 1999. 

9.  On 2 June 2005, the applicant married his wife, Ibis.  

10.  In or around October 2014, he submitted an application for retired pay at age 60.  With his application, he also completed and submitted a DD Form 2656 on 25 October 2014.  He indicated that he was married as of 2 June 2005 and they had three children (Samuel, Sergio, and Samantha).  He elected SBP coverage for "spouse" only based on the full gross pay.

11.  On 11 December 2014, HRC published orders placing him on the Retired List in his retired grade of LTC effective 28 November 2014, his 60th birthday. 

12.  His January 2015 Retiree Account Statement shows the entries: 

* SBP Coverage Type: 	Children Only
* Child Cost: 				$0
* RCSBP Cost: 			$15.27 

13.  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. An election, once made, was irrevocable except in certain circumstances.  This law, as amended, also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

14.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:  

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

15.  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 should the member have died prior to age 60.

16.  Title 10, U.S. Code, section 1448 governs the SBP. 

	a.  Section 1448(a)(1), the program established by this subchapter shall be known as the Survivor Benefit Plan.  The following persons are eligible to participate in the Plan:  Persons entitled to retired pay and persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age.

	b.  Section 1448(a)(4)(B) Reserve-component annuity; an election under paragraph (2)(B) is irrevocable if not revoked before the end of the 90-day period referred to in that paragraph.

	c.  Section 1448(a)(5), participation by person marrying after retirement, etc.  A person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  Such an election may not be revoked except in accordance with subsection (b)(3).  The election is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned.  In the case of a person providing a reserve-component annuity, such an election shall include a designation under subsection (e).

17.  Periodically, Congress passes laws that establish Open Seasons which allow SBP enrollment or changes.  For example, Public Law 97-35, enacted 12 August 1981, established an Open Season from 1 October 1981-30 September 1982.  Public 101-189, enacted 29 November 1989, established an Open Season from 1 October 1991- 30 September 1992.  Public Law 101-510, enacted 5 November 1990, changed the Open Season period enacted in Public Law 97-35 to 1 April 1992-31 March 1993.  Public 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006.  All of these Open Seasons were extensively publicized in Army Echoes to ensure all retirees were informed of their existence.  

DISCUSSION AND CONCLUSIONS:

1.  When the applicant received his 20-year letter in May 1999, he was not married.  He completed and submitted a DD Form 1883 wherein he elected enrollment in the RSCBP, children coverage, under Option C, reduced amount.  This means in the event he died before reaching age 60, his beneficiary (children) would have been entitled to an annuity, if otherwise qualified.  He was then transferred to the Retired Reserve in October 1999.

2.  The applicant married his wife on 2 June 2005.  He may have gone to Fort Buchanan to update DEERS and obtain an ID card for his wife; however, there is no evidence to he took action in the form of making an election to enroll his spouse in the RCSBP within 1 year of his marriage as required by law.  DEERS registration is key to obtaining an ID card, TRICARE, and other benefits. The SBP, on the other hand, requires an active, written election (or declination) of an option and can only be initiated by the member.  

3.  Not only did he have a year from the date of marriage to enroll his spouse in the RCSBP, at the time of his marriage, Congress authorized an Open Season from 1 October 2005-30 September 2006 that was extensively publicized.  

4.  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.  This means the DD Form 2656 completed by the applicant on 14 October 2014 is invalid.  Additionally, the applicant cannot cancel SBP participation or change options they had in RCSBP - the options automatically roll into SBP coverage.  His SBP cost is zero because his children aged off.  But the RCSBP cost remains valid.  

5.  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 should the member have died prior to age 60.  This cost is the cost of coverage the applicant enjoyed between the date he made the election in 1993 and the date he turned 60.  Again, had he died during this period, his beneficiary would have been entitled to the annuity.  

6.  There is no evidence to show the applicant complied with the statutory requirements of enrolling his wife in the RCSBP within 1 year of his marriage and there is no independent evidence of Government error or that misinformation was given to the applicant by Government personnel.  

7.  As a result, there is insufficient evidence to grant him the requested relief.  If and when Congress authorizes a future Open Season, the applicant may have an opportunity to add coverage for his wife at that time. 

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)                                         AR20150003739



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150003739



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1