BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20160000045 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ ____x_ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20160000045 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. BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20160000045 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 records to show he elected Reserve Component Survivor Benefit Plan (RCSBP) coverage for his spouse within one year of marriage. 2. The applicant states that he was not aware of the requirement to make an SBP election within one year of being married. 3. The applicant provides his: * marriage license * DD Form 1883 (SBP Election Certificate), dated 20 August 2000 * DD Form 2656-6 (SBP Election Change Certificate), dated 2 October 2015 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 12 May 1962. 3. On 20 June 2000, the Department of the Military Affairs, Boone National Guard Center, Frankfort, KY, issued him 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 qualifying Reserve service and would be eligible for retired pay upon application at age 60. 4. On 20 August 2000, he completed a DD Form 1883, indicating he was not married but that he had dependent children. As such, he elected “child(ren) only” SBP coverage based on his full retirement pay. 5. On 30 November 2001, he was transferred to the Retired Reserve. 6. He married Bxxxx on 20 October 2012. 7. On 2 October 2015, he submitted a DD Form 2656 wherein he indicated that he was requesting a change to his SBP election based on marriage. 8. On 2 November 2015, the Reserve Component Retirements Office denied his request for RCSBP citing his failure to make the election within one year of his marriage. REFERENCES: 1. 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. 2. 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 RCSBP 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 in which that person marries or acquires that dependent child. There is no provision that requires a person that marries to be counseled on the 1 year timeframe in which to make an election for spouse coverage. 3. On occasion, the U.S. Congress enacts into law an SBP Open Season. For example, Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. It required the retiree to pay monthly premiums starting on the date of enrollment and a buy-in premium covering all costs that would have been paid for the election if it had been made at the first opportunity to do so. DISCUSSION: 1. The applicant contends he should be allowed to enroll in the SBP for spouse only coverage because he was not aware that he had only one year from the time of marriage to make such an election. 2. On 30 November 2001, the applicant was transferred to the Retired Reserve. He elected “child(ren) only” SBP coverage based on his full retirement pay. On 20 October 2012, he was married and it appears that he did not apply for SBP coverage until October 2015. 3. The governing law is clear in that a person who is not married, but who later marries, may elect to participate in the SBP with spouse coverage. 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. The applicant failed to make such an election within 1 year after the date on which he was married in 2012. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000045 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000045 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2