IN THE CASE OF: BOARD DATE: 14 May 2009 DOCKET NUMBER: AR20090000734 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 wife be his named as his Survivor Benefit Plan (SBP) beneficiary. 2. The applicant states, in effect, that when he retired in March 1990 he was not married and that his young daughter was named his SBP beneficiary. He further states, in effect, that he was never informed that when and if he married that he needed to notify the Defense Finance and Accounting Service (DFAS) within one year of his date of marriage. He states that when he filed for his retired pay at age 60 he annotated that he was married and that his wife should be his SBP beneficiary. When he received his Retiree Account Statement it did not show his wife as his SBP beneficiary. 3. The applicant provides copies of his DFAS Retiree Account Statement dated 22 August 2008, marriage certificate, and DD Form 1883 (Survivor Benefit Plan Election Certificate) dated 6 November 1989. 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 16 August 1948. Military personnel records show he enlisted in the U.S. Army Reserve (USAR) on 31 March 1967. 3. On 6 September 1987, a Chronological Statement of Retirement Points published by U. S. Army Reserve Personnel Center (ARPERCEN) shows the applicant had attained 20 qualifying years of service for retirement at age 60 as of 30 March 1987. 4. On 31 August 1989, Headquarters, ARPERCEN issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) Memorandum. This memorandum notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60. Attached to this letter was his Chronological Statement of Retirement Points. This memorandum further stated that he was entitled to participate in the Reserve Component Survivor Benefit Plan (RCSBP) and by law he had only 90 calendar days from the date he received this letter to submit his DD Form 1883. 5. On 6 November 1989, the applicant completed the DD Form 1883 and in his own hand elected Children Only SBP Coverage, Option C (Immediate Coverage). The DD Form 1883 shows one dependent child named Kristen ________ with her date of birth as 23 September 1983. 6. Headquarters, First U. S. Army and Fort George G. Meade Orders 81-6 dated 30 April 1990 transferred the applicant to the USAR Control Group (Reinforcement) effective 30 April 1990. 8. On 4 July 1996, the applicant married Suzanne _________ in Smithfield, Rhode Island. 9. On 15 July 2008, U. S. Army Human Resources Command, St. Louis published Orders P07-810331 placing the applicant on the Army of the United States Retired List effective 16 August 2008. This order further stated that he was authorized retired pay. 10. The applicant's Retiree Account Statement shows that he had Child Only RCSBP coverage. This same statement shows that his wife, Suzanne ________, is his beneficiary for any arrears of retirement pay. 11. 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. 12. 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. 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 wait until he applied for retired pay and elected to participate in the standard SBP. If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay. Once a member elects either Options B or 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. It automatically rolls into SBP coverage. 13. Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married or 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. 14. Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000. 15. Public Law 108-375, enacted 28 October 2004, established an SBP Open Season from 1 October 2005 through 30 September 2006. 16. Army Regulation 600-8-7, Army Retirement Services describes Army policy and procedures for the Survivor Benefit Plan (SBP) program as prescribed by public law; publishes the Headquarters, Department of the Army retiree bulletin Army Echoes; develops policy for the operation of the Army installation Retirement Services Program; and administers the Army Chief of Staff's (CSA) Retiree Council. Army Echoes is an authorized bulletin published three times a year. Its purpose is to keep retired Soldiers informed of their rights and privileges, to update them of developments in the Army, and to inspire goodwill and a desire to support the Army in the civilian community. The Army Echoes publishes the dates of the SBP open seasons, once established by legislative action through Congress. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that he is entitled to RCSBP spouse coverage based on his 4 July 1996 date of marriage. By law, he had one year to request, in writing, RCSBP Spouse Coverage for his wife and at the time of his application he was required to submit a copy of his marriage certificate. 2. The applicant’s election to participate in the RCSBP Child Only Coverage was an irrevocable decision which rolled over into the SBP upon his reaching age 60. No changes to his deemed RCSBP election could be made upon his application for retired pay at age 60. 3. The second legitimate period during which the applicant could have enrolled his spouse for SBP spouse coverage following the 1-year anniversary of their marriage was during an authorized Open Season established by Public Law 105-261, enacted 17 October 1998, which was conducted 1 March 1999 through 29 February 2000. 4. A third legitimate period during which the applicant could have enrolled his spouse for SBP spouse coverage was during an authorized Open Season established by Public Law 108-375, which was conducted from 1 October 2005 to 30 September 2006. Again, the applicant's record and his supporting documentation shows he did not enroll during this Open Season. 5. The applicant had three opportunities to enroll in the SBP for spouse coverage since his date of marriage on 4 July 1996. However, there is no documentary evidence that he did so. Therefore, there is insufficient evidence on which to base granting the applicant the requested relief. 6. While it is unfortunate if the applicant was unaware that he had to make an RCSBP election within a year of his marriage, his lack of knowledge does not constitute grounds to now allow him to change his SBP election. 7. In view of the foregoing, there is no basis for granting the applicant's request. 8. The applicant is encouraged to openly seek the counsel of his local retirement services officer and to read Army Echoes, as published by Department of the Army, for updates on SBP Open Season enrollment periods. 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) AR20090000734 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090000734 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1