RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 March 2007
      DOCKET NUMBER:  AR20060010135


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

|     |Mr. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. David K. Hassenritter         |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his Survivor Benefit Plan (SBP)
coverage be changed from "Child Only" to "Spouse Only", effective the date
he began receiving retired pay.

2.  The applicant states, in effect, he completed a SBP Election
Certificate
(DD Form 1883) on 15 August 1989, when he was 48 years of age.  He claims
at the time he did not have an eligible spouse, and he elected "Child Only"
coverage and named his daughter, who was 20 at the time as beneficiary.  He
claims that in January 2004, he received his retirement packet to complete
for retired pay at age 60 in January 2006.  He states that he completed the
packet and returned it in February 2004, which included his SBP election
for full Spouse coverage.  He claims he followed-up with a phone call to
determine if his request for a change to his SBP beneficiary had been
completed, and he was advised to call back within 90 days of his retirement
date.  He states that he began calling in the fall of 2005 and continued to
call through February 2006.  When he did not get a response to his phone
calls, he submitted a letter in February 2006.  He states that in June
2006, he called the Defense Finance and Accounting Service (DFAS) to
determine if the SBP action had been completed, and at this time he was
informed he would have to apply to this Board to make this change.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement with Outline of Efforts to Correct
SBP Election; Data for Payment of Retired Personnel (DD Form 2656), dated 5
February 2004; DD Form 1883, dated 15 August 1989; Marriage License; and
Retiree Account Statement for February-March 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he served in the United States Army
Reserve (USAR) from 16 July 1970 through 20 May 1994, at which time he was
transferred to the Retired Reserve after completing 20 years of qualifying
service for retirement.

2.  On 15 August 1989, upon obtaining 20 qualifying years of service for
non-regular retired pay at age 60, the applicant completed a SBP Election
Certificate (DD Form 1883).  In this form, he indicted that he was not
married and he elected Option B (Age 60) "Children Only" full SBP coverage
and listed his daughter, who was 20 years old at the time.

3.  On 8 February 1991, the applicant married his current spouse.
4.  On 20 May 1994, United States Army Reserve Personnel Center (ARPERSCEN)
Orders C-05-423331 directed the applicant's transfer to the Retired
Reserve, effective 20 May 1994.

5.  A Reserve Personnel Accounting System (RPAS) retirement points summary
on file shows the applicant completed a total of 1707 retirement points and

20 years of qualifying service for retirement purposes.

6.  On 5 February 2004, the applicant completed a Data for Payment of
Retired Personnel in conjunction with submitting his application for
retired pay at age 60. In this document, he elected full "Spouse Only" SBP
coverage and listed his current wife as beneficiary.  He added a remark
indicating that he had elected his daughter as beneficiary on a DD Form
1883 he submitted in 1989; however, his daughter was 35 years of age and
married.  He further indicated that he remarried on 8 February 1991, and he
wanted his wife to be his SBP beneficiary.

7.  A summary of the applicant's Retired Pay Account obtained from the DFAS
shows he is participating in the Reserve Component (RC) SBP and his
coverage was Children Only, which was based on his 1989 election.

8.  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 60th 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 or else wait
until he/she applies for retired pay and elect to participate in the
standard SBP.

9.  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 to cover such individuals.  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.

10.  Title 10 of the United States Code, section 11452(a)(1)(B), provides
the legal authority for reduction in retired pay for RCSBP participants.
It states, in pertinent part, that in the case of a participant in the
RCSBP who provided coverage for an eligible beneficiary during a period
before becoming entitled to receive retired pay, the retired pay of the
participant shall be reduced by an amount prescribed under regulations by
the Secretary of Defense to reflect the coverage provided under the Plan
during the period before the participant became entitled to receive retired
pay.

DISCUSSION AND CONCLUSIONS:

1.  By law, a member who is not married upon obtaining eligibility to
participate in the SBP may elect to participate in the SBP to cover such
individuals.  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.

2.  The evidence of record confirms that at the time the applicant
completed his SBP election in 1989, he was not married.  It further shows
that he attempted to enroll for "Spouse Only" coverage on 5 February 2004,
when he completed a
DD Form 2656 in conjunction with his application for retired pay.  Given it
appears the applicant was not fully advised of his options and was unaware
of the requirement to change his SBP election within 1 year of his
marriage, it would be appropriate and serve the interest of equity and
justice provide the requested relief.

3.  In view of the facts of this case, it would be appropriate to correct
the applicant's record to show he completed and submitted his written
request
for Spouse Only SBP coverage, effective 8 February 1991, the date of his
marriage.  This will require the applicant to pay all retroactive SBP
premiums due from the effective date of his election through the present.

BOARD VOTE:

___KAN_  __DKH __  __LMD__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 he elected Spouse Only SBP coverage on 8 February
1991, the date of his marriage, and that this is the SBP election currently
in effect.

2.  In connection with this correction, the individual concerned will be
required to provide all retroactive SBP premiums due as a result.




                                  _____Kathleen A. Newman_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060010135                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/20                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2006/01/06                              |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |Non-Regular Retirement                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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