MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 August 2002
         DOCKET NUMBER: AR2002074187

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Lester Echols		Member
Ms. Margaret V. Thompson		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
advisory opinion, if any)

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APPLICANT REQUESTS: That his Survivor Benefit Plan (SBP) coverage be changed to his original election of children only coverage and that he receive a refund of premiums.

APPLICANT STATES: That he was told, in December 1999, that he could not add his wife to the SBP since he had elected children only coverage. His first three Retiree Account Statements indicated that he had children only coverage. He had adopted four children, the youngest age 2. His wife was added on his March 2002 Statement and his SBP costs increased from $5.17 a month to $21.14. He was not married at the time he made his (original) election and he was told he would have to live with it, so that is what he wants to do. He provides no supporting evidence.

EVIDENCE OF RECORD: The applicant's military records show:

He was born on 28 November 1941. He enlisted in the Army National Guard in February 1958. He was appointed a warrant officer in the Army National Guard in April 1963. He transferred to the U. S. Army Reserve in June 1977. His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 6 August 1979.

On 19 May 1980, the applicant completed a Survivor Benefit Plan Election Certificate, DD Form 1883. He was apparently unmarried at the time and enrolled in the Reserve Component SBP (RCSBP) for children only coverage, full base amount, option C.

The applicant married on 31 October 1980. On 1 December 1980, he completed a DD Form 1883 and enrolled in the RCSBP for spouse and children coverage, reduced base amount, option C.

On 14 February 1984, the applicant completed a DD Form 1883 apparently in an attempt to change his RCSBP to children only coverage, full base amount option C. He divorced on or about 11 October 1984.

The applicant married again on 2 April 1988. On 7 January 1989, he completed a DD Form 1882, Survivor Benefit Plan Election Change, changing his RCSBP coverage to spouse only coverage, full base amount.

The applicant applied for retired pay on 2 November 1999 by completing a Data for Payment of Retired Personnel, DD Form 2656. At that time he elected SBP coverage for spouse only, indicating he had no dependent children. He checked that he elected coverage on his full retired pay but also indicated that he elected a reduced ($300) amount.

The applicant apparently adopted four children on an unknown date.
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.

Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976, provided that spouse costs would be suspended if marriage ends in death or divorce.

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: (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 60^th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60. If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.

Once a member elects either Options B or C in any category of RCSBP coverage, that election is irrevocable except under certain circumstances. 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 RCSBP – it automatically rolls into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. An Open Season was established from 1 October 1978 – 30 September 1979; later extended to 31 March 1980.

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 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 one year after the date on which that person marries or acquires that dependent child. Such an election may not be revoked except in accordance with subsection (b)(3) (former spouse coverage).

Title 10, U. S. Code, section 1448(g) provides that a person who is a participant in the SBP and is providing coverage for a spouse or a spouse and child, but at less than the maximum level and who remarries may elect to increase the level of coverage.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant’s 20-year letter was dated 6 August 1979 and his first DD Form 1883, in which he elected children only RCSBP coverage, was dated 19 May 1980. This was outside both the 90-day window and the first Open Season for retired-pay eligible reservists but it appears it was accepted for processing anyway. The reason for its acceptance possibly had to do with the date he received his 20-year letter, which by law is the key date rather than the date of the letter itself.

2. The applicant married on 31 October 1980. On 1 December 1980, within one year of his marriage, he elected to provide RCSBP coverage for his new spouse (and children) as by law he had the right to. This is one of the “certain circumstances” provided for by law to change an otherwise irrevocable election. He did not have the statutory right to reduce his coverage; however, the law provides for an increase in coverage upon marriage, not a decrease.

3. On 14 February 1984, the applicant attempted to change his RCSBP coverage from spouse and children to children only coverage. This change was not authorized by law since he was still married until his divorce around October 1984. Upon his divorce, his spouse costs would have been suspended, not terminated. Again, once he made an election for spouse coverage, that election was irrevocable except under certain circumstances.

4. The applicant remarried on 2 April 1988 and it appears his DD Form 1882 was his notification to the Army that he had remarried. At that time, his spouse costs were reinstated based upon his full retired pay (as provided by his original election of coverage and as he requested on the DD Form 1882).

5. When the applicant completed the DD Form 2656 in November 1999 upon applying for retired pay, he should not have completed the section pertaining to the SBP as his RCSBP election rolled over into the SBP. Nevertheless, at the time he completed the DD Form 2656 he checked that he elected spouse coverage. He provides no evidence to show that he was told he could not elect spouse coverage and no evidence to show that his DD Form 1883 dated 1 December 1980, wherein he enrolled his spouse, was not accepted. It appears he may have been told that his election of spouse coverage at that time, i.e., in November or December 1999, was redundant since he had elected spouse coverage under the RCSBP.

6. The fact that the Defense Finance and Accounting Service may have missed his election of spouse coverage for the first few months after becoming eligible for retired pay is understandable considering how many election forms the applicant submitted over the years. However, he elected spouse coverage in 1980, for full base amount, and he is currently married. His current spouse has had a vested interest in the SBP since their marriage in 1988 and has been the lawful beneficiary since that time. The Board concludes there is no error or injustice in this case.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__RJW__ ___LE___ __MVT__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002074187
SUFFIX
RECON
DATE BOARDED	2002/08/08
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	137.04
2.
3.
4.
5.
6.