IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150010528 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 IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150010528 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient to warrant an amendment of the ABCMR's decision in Docket Number AR20130018193, dated 6 August 2014, 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. IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150010528 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 reconsideration of his earlier request to show he elected to change his Reserve Component Survivor Benefit Plan (RCSBP) coverage from spouse-only to spouse and child(ren) within 1 year of the birth of his son. 2. The applicant states, in effect: * he does not agree with the Board's conclusions and recommendations * a major point in the Board's Record of Proceedings was that, as a lieutenant colonel (LTC), he should have had the means to obtain the necessary information with regard to SBP * while still in his USAR unit, he was one of nine LTCs; the unit was "top-heavy" and consisted mostly of captains and majors * their administrative support was 50 miles away; as such, the administrative staff was not always available to them during drill weekends * he completed his DD Form 1883 (SBP Election Certificate) 5 years before the birth of his son * his son was born on 12 March 2002; the context at that time was the aftermath of the 9/11 attacks, and the up-tempo status of his unit as they began training and mobilizing units for deployment * his personal issues became secondary to his efforts to support his unit's mission * he does not believe it is reasonable to assume he would have sought out guidance to make a change on the DD Form 2656 (Data for Payment of Retired Personnel) * for most Reservists, he surmises, the DD Form 1883 may be submitted only once; and that is on receipt of the Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * his lack of familiarity with the form, and the circumstances of having a son late in his career, may have contributed to both the administrative staff and him missing the requirement to change SBP coverage prior to his transfer to the Retired Reserve * he was also unaware that Public Law 108-375 had permitted an Open Season to be held between 2005 to 2006 * he became aware that he needed to make a change in his SBP election when he attended a pre-retirement counseling session on 18 August 2012 * the counseling session was very informative, he only wished he had had the benefit of such a session prior to his transfer to the Retired Reserve * he has always had the intent to provide for his family; SBP is a valuable benefit, and one he regrets not addressing when required * he asks the Board to take the foregoing into account; consider the context of the time, the lack of adequate administrative support, and his own unfamiliarity with the form 3. The applicant provides a copy of the initial action by the Board, with associated documents. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130018193 on 6 August 2014. 2. The applicant provides new arguments not previously considered by the Board. These arguments warrant consideration. 3. His date of birth is 28 March 1953. 4. He previously served 7 years and 1 month in the Regular Army as a commissioned officer. He was honorably discharged in 31 July 1982 and, per his request, was appointed as a commissioned officer in the U.S. Army Reserve (USAR). He transferred to a USAR unit and served continuously from 1 August 1982 until his retirement. His rank/grade at retirement was LTC/O-5. 5. On 30 October 1996, he was issued his 20-Year Letter. 6. On 6 September 1997, the applicant completed a DD Form 1883. On this form, he indicated he: * was married and had no children * elected spouse-only RCSBP coverage based on the full amount of his retired pay under Option C (immediate coverage) 7. On 13 March 2002, his son was born. 8. On 1 July 2003, the applicant was transferred to the Retired Reserve. He had completed 28 years of qualifying service for retired pay at age 60. 9. On 29 August 2012, he completed a DD Form 2656. In item 26 (Beneficiary Category(ies)) he elected coverage for spouse and child(ren) and in item 27 (Level of Coverage) he elected coverage based on full gross pay. 10. On 28 March 2013, he was placed on the U.S. Army Retired List. REFERENCES: 1. 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. Since its creation, it has been subjected to a number of substantial legislative changes. 2. 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. a. 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 b. Once a member elects either option B or option C in any category of coverage, that election is irrevocable. Option C participants are not permitted to make a new SBP election at age 60. They cannot cancel SBP participation or change their options they had in RCSBP, except when Congress has authorized an Open Season. The options otherwise automatically roll into SBP coverage. 3. Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married upon becoming eligible to participate in the RCSBP, but who later marries or acquires a dependent child, may elect to participate in the SBP. The service member must make his or her election in writing, and provide a signed copy so that the Secretary concerned receives it within 1 year after the date the service member marries or acquires that dependent child. (The Defense Finance and Accounting Service interprets the phrasing of the first sentence of this section to read, "…is not married or has no dependent child.") 4. Congress has periodically authorized Open Seasons that allow eligible non-participants to enroll in SBP or, if participating, increase their level of participation. The last Open Season was held between 2005 and 2006. 5. Echoes is an Army bulletin published periodically and now available online. It provides retirees with information about developments in the Army, and keeps them abreast of their rights and privileges. The statement, “Remember: You are responsible for updating your retired pay file information at DFAS-CL, using the London, KY mailing address below, within one year of the event if you marry, remarry, have a child, are widowed or divorced and need to make or update an SBP election" is routinely published. DISCUSSION: 1. The applicant requests reconsideration to permit his son to be eligible for SBP coverage. 2. The available evidence shows the applicant elected spouse-only RCSBP coverage in 1997, Option C, full coverage. His son was born on 13 March 2002. There is no evidence he submitted an RCSBP election, within 1 year of his son's birth, showing he had a child. There also is no proof he participated in the Open Season conducted between 2005 and 2006. 3. The applicant argues, in effect, there were extenuating circumstances that contributed to him missing the timelines required by law. While these circumstances were significant, they existed for many Soldiers who were still able to submit election changes within the 1-year time limit, based on marriage and/or the birth of a child. Additionally, notice of the legal requirements under SBP has been published regularly in such venues as the Echoes Army bulletin. 4. Should Congress once again authorize an Open Season, the applicant can, at that time, update his SBP election. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010528 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010528 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2