IN THE CASE OF: BOARD DATE: 25 November 2008 DOCKET NUMBER: AR20080012511 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, that his military records be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage. 2. The applicant states that he would like to list his wife as the beneficiary of his retirement pay. 3. The applicant provides no additional evidence in support of his application. 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 21 June 1959. Having prior active service in the Air Force, he enlisted in the U.S. Army Reserve (USAR) on 22 December 1981. 3. On 3 December 1997, the applicant received his notification of eligibility for retired pay at age 60 (his 20-year letter). Paragraph 4 of this letter pertains to the RCSBP and the DD Form 1883 (Survivor Benefit Plan Election Certificate) and informed him that he had 90 calendar days from the date he received the letter to submit his DD Form 1883 or he would not be allowed to obtain SBP coverage until he applied for retired pay at age 60. According to officials at the Human Resources Command, St. Louis, Missouri, he did not return the DD Form 1883. 4. On an unknown date, no later than 23 April 2004, the applicant married his current spouse. 5. The applicant was transferred to the Retired Reserve effective 31 December 2004. 6. 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. 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. Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 to 29 February 2000. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. 9. Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 to 30 September 2006. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. 10. 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 one year after the date on which that person marries or acquires that dependent child. 11. The Defense Finance and Accounting Service interprets the first part of Title 10, U.S. Code, section 1448(a)(5) to mean, "…who is not married OR has no dependent child…." DISCUSSION AND CONCLUSIONS: The applicant did not make an RCSBP election in 1997. His date of marriage is not known but is before 23 April 2004. If he was married at the time he received his 20-year letter, his failure to make an RCSBP election at that time requires him to wait until he turns age 60, when he can enroll in the standard SBP. If he married after he received his 20-year letter (and provided he was not married at the time he received his 20-year letter), he had one year from his date of marriage to enroll. There is also no evidence to show he attempted to enroll during an Open Season. Regrettably, there is no basis for granting the applicant's request. 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. ________XXX______________ 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) AR20080012511 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080012511 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1