Also see Law Review No. 1099: Law Review 1008 Reconsidered.
Reserve Component Survivor Benefit Plan for Reservist Who Marries After Notification of Eligibility to Participate
By Captain Samuel F. Wright, JAGC, USN (Ret.)
5.0—Military Service and Family Obligations
Q: I was born in 1960. In 1982, I graduated from the Coast Guard Academy and was commissioned an Ensign. I remained on active duty until 1988 then affiliated with the Coast Guard Reserve. In 2002, after I had completed 20 “good years” for Reserve Component (RC) retirement purposes, I received a Notice of Eligibility (NOE) and notice of my opportunity to elect to participate in the RC Survivor Benefit Plan (RCSBP).
I was promoted to Captain (O-6) in 2005, and I expect to remain active in the Coast Guard Reserve until 2012, when I will reach my mandatory retirement date, based on 30 years of commissioned service. At that point, I will become a “gray area retiree” until I attain my 60th birthday in 2020 and start drawing retired pay.
When I received the NOE and the RCSBP notice in 2002, I was not married and had no children. Accordingly, I named my sister as the beneficiary. I got married in 2006 and notified the Coast Guard during my next drill weekend after the wedding. I asked the Personnel Officer to give me all the forms that I needed to complete because of the marriage, and he gave me several such forms. I completed and submitted all of them and then asked again if he was certain that there were no more forms that I needed to complete. He assured me that I had completed all the forms that I needed to complete.
I recently tried to enroll my wife in the RCSBP, in lieu of my sister, and I was told that I am too late. What gives?
A: Unfortunately, you are too late, and the fact that the Coast Guard Personnel Officer failed to alert you to the need to change your RCSBP election does not change the fact that the deadline has passed.
The law provides as follows concerning eligibility to participate in the Survivor Benefit Plan: “The following person are eligible to participate in the Plan: (A) Persons entitled to retired pay. (B) Persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age.” 10 U.S.C. 1448(a)(1).
“A person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan.” 10 U.S.C. 1448(a)(5)(A).
“Such an election must be written, signed by the person making the election, and received by the Secretary concerned[the Secretary of Homeland Security for you] within one year after the date on which that person marries or acquires that dependent child.” 10 U.S.C. 1448(a)(5)(B) (emphasis supplied).
You lost the opportunity to elect RCSBP coverage for your wife because you failed to make the required election within one year after the marriage.
“A person who is not married and does not have a dependent child upon becoming eligible to participate in the Plan may elect to provide an annuity under the Plan to a natural person with an insurable interest in that person. In the case of a person providing a reserve-component annuity, such an election shall include a designation under subsection (e).” 10 U.S.C. 1448(b)(1)(A).
This is the provision that authorized you to designate your sister in 2002, when you received your RCSBP notice. Upon getting married, you could have discontinued the coverage of your sister and chosen coverage for your wife, in accordance with 10 U.S.C. 1448(b)(1)(B). You lost that opportunity when you failed to take the required action within one year after your marriage.
In 2020, when you turn 60 and become eligible to receive retired pay, you will have another opportunity to elect RCSBP coverage for your wife. 10 U.S.C. 1448(a)(2). The problem is that this opportunity does not protect you from the possibility that you could die before you attain your 60th birthday. The RCSBP annuity can pay starting on the day after the reservist’s death, even if the reservist was not yet 60 and not yet receiving retired pay when he or she died. See10 U.S.C. 1448(e)(1).
Q: This is not fair! On the first drill weekend after my wedding, I notified the Personnel Officer and asked him to give me all the forms that I needed to complete to notify the Coast Guard of my marriage. I completed all those forms and asked again if there were any other forms I needed to complete. He assured me that I had done all that I needed to do.
In the mid 1990s, the Coast Guard abolished Reserve units, except for a handful of Port Security Units. Most Coast Guard Reserve personnel, myself included, report to active duty Coast Guard organizations. The Personnel Officers at Coast Guard active duty organizations are often unfamiliar with Reserve-specific requirements. I was put at a disadvantage because the Personnel Officer failed in his responsibility to provide me complete and correct information.
A: The Federal Government is not responsible for misleading or incorrect information given out by government agents, even if a private insurance company would be held responsible for misleading information given out by its employee under similar circumstances. See Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947). Ignorance of the law is no excuse. You are presumed to know the contents of the United States Code and federal regulations duly published in theFederal Register, although having actual knowledge of all such provisions is practically impossible.
In his dissent in Merrill, Justice Jackson wrote, “To my mind, it is an absurdity to hold that every farmer who insures his crops knows what the Federal Register contains, or even that there is such a publication. If he were to peruse this voluminous and dull publication as it is issued from time to time in order to make sure whether anything has been promulgated that affects his rights, he would never need crop insurance, for he would never get time to plant any crops. Nor am I convinced that a reading of technically worded regulations would enlighten him much, in any event.”
But that was the dissent. The rule of law enunciated by the Supreme Court is that you are held to know the contents of federal laws and regulations, even if you have no actual knowledge of them and even if a federal official has misled you by giving you incomplete or incorrect information. You have no cause of action against the Personnel Officer who failed to notify you of the need to change your RCSBP designation, and the misleading information does not mitigate the fact that you failed to change the designation within one year after your marriage.
Let this be a lesson to readers. In managing your military and civilian careers, you need to understand all the laws and regulations that may be applicable. Spending a few hundred or a few thousand dollars for expert legal advice would be money well spent, especially if you get the advice in time to act upon it. Part of the problem is that there are not a whole lot of lawyers who understand military-specific laws and situations. This demonstrates the need for the Law Review Library, the Servicemembers Law Center, and the Reserve Officers Association.
We are doing everything we can do educate RC members, employers, attorneys, and others about the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Servicemembers Civil Relief Act (SCRA), the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), and other laws that pertain to members of the armed forces
If you have questions, suggestions, or comments, please contact Captain Samuel F. Wright, JAGC, USN (Ret.) (Director of the Servicemembers’ Law Center) at firstname.lastname@example.org or 800-809-9448, ext. 730.