IN THE CASE OF: BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150004001 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 changed his Reserve Component Survivor Benefit Plan (RCSBP) election from spouse and children coverage to spouse-only coverage. 2. The applicant states: a. His retiree account statement shows children-only Survivor Benefit Plan (SBP) coverage, but his children are adults and are not his dependents now nor were they at the time of his retirement in April 2003. b. He married on 9 December 2010 and promptly notified the Department of Defense of that fact. He also completed a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate) and mailed it to the Defense Finance and Accounting Service (DFAS) in January 2011 to change his SBP election to spouse only. c. He has been paying RCSBP/SBP premiums each month since his retirement so he didn't feel there was anything wrong until he happened to look at his retiree account statement recently and noticed his SBP coverage election had not been updated. There was no reason to think there was a problem since he never stopped paying the RCSBP/SBP premiums. d. He is distraught to think his wife will not be eligible for the SBP annuity in the event he passes away. 3. The applicant provides: * copies of his spouse's U.S. Uniformed Services Identification and Privilege Card * DD Form 2656-6 * retiree account statement 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 25 March 1941. He married S____ on 11 November 1966. Having prior enlisted service in the U.S. Army Reserve (USAR), he was appointed as a warrant officer one on 5 February 1981. 3. On an unknown date, he received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 4. His DD Form 1883 (SBP Election Certificate), dated July 1991, shows he enrolled in the RCSBP for spouse and children coverage and elected option C, full base amount. 5. He entered active duty in an Active Guard Reserve status on 28 August 1994. He was promoted to chief warrant officer four effective 5 February 1996. He was released from active duty on 30 March 2003 due to maximum age and transferred to the USAR Control Group (Reinforcement). He was further transferred to the Retired Reserve effective 1 April 2003. 6. His DFAS records do not contain a divorce decree or death certificate for S____. 7. His DFAS records show he did not have a spouse and his SBP election was for child-only coverage when he retired in 2003 and started drawing retired pay. 8. His records contain a DD Form 2656 (Data for Payment of Retired Personnel), dated 18 January 2005, which shows he was single and elected not to participate in the SBP. 9. He married P____ on 9 December 2010. 10. He provided a DD Form 2656-6, dated 11 January 2011, showing he requested a change in his current SBP coverage due to marriage. He elected spouse-only coverage. 11. He also provided an undated retiree account statement showing his SBP coverage as child(ren) only. 12. 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. 13. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who 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; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. 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 the RCSBP and RCSBP coverage automatically rolls into SBP coverage. DISCUSSION AND CONCLUSIONS: 1. The applicant's DD Form 1883 shows he enrolled in the RCSBP for spouse and children coverage in 1991. He indicated he did have a dependent child (T____). T____ was approaching 20 years of age, but would have qualified as an eligible child dependent if attending post-secondary school full time. 2. Although DFAS records do not contain a divorce decree or death certificate for S____, there is no evidence his RCSBP election was ever changed to former spouse. Accordingly, when his marriage to S____ ended, the spouse portion of his coverage was suspended. 3. He married P____ in December 2010 and the evidence shows he requested a change in his current coverage due to marriage in January 2011. 4. Because his original election of spouse coverage under RCSBP was simply suspended, his new wife P____ became his eligible spouse beneficiary effective 1 year after they married. His 2005 attempt to decline SBP was invalid because RCSBP elections automatically convert to SBP elections and his 2011 attempt to change his SBP from child-only to spouse-only is also essentially superfluous and should only have served to bring the spouse portion of his previously-elected coverage out of suspension. 5. The applicant is advised that the RCSBP child-only portion of his premium pays for the assured protection T____ would have enjoyed had he died prior to his completion of post-secondary school while less than age 23. BOARD VOTE: ____X___ ____X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 the applicant elected RCSBP spouse and child coverage upon receipt of his 20-year letter and that his spouse coverage resumed (came out of suspension) effective December 2011. ___________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) AR20150004001 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004001 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1