IN THE CASE OF: BOARD DATE: 31 May 2018 DOCKET NUMBER: AR20160002758 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 31 May 2018 DOCKET NUMBER: AR20160002758 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 his spouse be eligible for survivor benefits. In effect, he requests correction of his records to show he applied for the Reserve Component Survivor Benefit Plan (RCSBP), spouse coverage, within one year of his marriage. 2. The applicant states he was single during the entire time he was in the military service, including when he received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) in 2002. He got married in 2005. He did not know he had to request the RCSBP within a year of his marriage. He wants his wife to receive RCSBP benefits if he dies. He just found out about being able to submit an appeal to this Board. 3. The applicant provides no additional evidence. 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, and 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 in February 1961. He will turn 60 years of age in February 2021. 3. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 15 May 1982. 4. He served in a variety of Army National Guard and USAR assignments and he attained the rank of major in April 1997. 5. On 30 October 2002, the U.S. Army Reserve Personnel Command issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter. Paragraph 4 of this letter informed him that: * he was eligible to participate in the RCSBP and to provide an annuity for his spouse and other eligible beneficiaries * he had only 90 calendar days from the date he received this letter in which to submit his RCSBP election * if he did not submit an election within this 90-day period, he would not be eligible to do so until he made application for retired pay at age 60 * if he waited until attaining age 60 to apply and died prior to reaching age 60, his survivors would not be entitled to RCSBP benefits 6. The 20-Year Letter stated a DD Form 1883 (Survivor Benefit Plan Election Certificate) and detailed information was enclosed with the letter. The letter also stated that if he was married and did not make a specific election within the allotted period, he would be automatically enrolled in the RCSBP under Option C, spouse and children coverage based on full retired pay. 7. According to the applicant's pay records at the Defense Finance and Accounting Service, the applicant is a future retiree and there is no documentation yet on file at DFAS pertaining to the RCSBP/SBP. 8. The applicant was transferred to the Retired Reserve on 5 July 2004. He completed 21 years and 9 months of qualifying service toward non-regular retirement. REFERENCES: 1. 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. 2. 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: * 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. If the member dies before reaching age 60, premiums are deducted from the annuity 3. Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent children 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 1 year after the date on which that person married or acquired a dependent child. 5. The National Defense Authorization Act for Fiscal Year 2005 established an open season for enrollment to be conducted from 1 October 2005 through 30 September 2006. The retiree must pay monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so. Extensive publicity was given in Army Echoes, the Army's retirement newsletter add open. DISCUSSION: 1. The available evidence shows that the applicant received his 20-Year Letter based on his completion of 20 qualifying years of service for retired pay. That letter explained the available options and requirements of law concerning submission of his RCSBP election. It is noted that the letter does not explain what a single Soldier should do upon later acquiring a spouse. 2. He states that he got married in 2005. By law, a Soldier who is not married and has no dependent children 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 election must be submitted within 1 year after the date the Soldier married. There is no evidence the applicant did so. 3. Furthermore, an SBP open season for enrollment was conducted between October 2005 and 30 September 2006. Again, there is no evidence the applicant attempted to make an election for RCSBP/SBP coverage for his spouse during the open season. Unfortunately, there is no way of knowing when, or if, another open season will be made available. 4. His contention that he was not married at the time is noted and is understandable. However, enrollment in and dis-enrollments from the SBP/RCSBP are governed by statutes. There is no government error. 5. The applicant will have an opportunity to enroll his spouse in the SBP should an open season become available before reaching age 60. He will also have an opportunity to so upon reaching age 60. 6. The Board must determine if the applicant provided sufficient evidence to support retroactive RCSBP participation to one year after his marriage in 2005. 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 as a basis for correction of the records of the individual concerned. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160002758 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002758 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2