RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 July 2007
      DOCKET NUMBER:  AR20070001368


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Ms. Susan A. Powers               |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 records be corrected to
show he requested spouse Reserve Component Survivor Benefit Plan (RCSBP)
coverage in a timely manner.

2.  The applicant states he completed his DD Form 1883 (Survivor Benefit
Plan Election Certificate) in April 1996 and elected child only coverage
because he was not married.  He married on 24 November 2000 and mailed in a
DD Form 1883 on 4 December 2000, electing full spouse coverage.  In
February 2004, he completed the DD Form 2656 (Data for Payment of Retired
Personnel) and elected SBP spouse only coverage as he no longer has
dependent children.  In February 2006, he started receiving retired pay.
Not only was he receiving the retired pay for a Colonel, O-6, but his son
was still listed as the beneficiary of his SBP.  He attempted to get the
SBP corrected at the same time he got the rank and grade for his pay
correct, but his SBP has not been corrected.

3.  The applicant provides two DD Forms 1883, one dated 3 April 1996 with a
DARP Form 3856 (Reserve Component Supplemental Survivor Benefit Plan
Election Certificate) and one dated 4 December 2000; his marriage
license/certificate, his wife’s birth certificate; his DD Form 2656; and
his January 2007 Retiree Account Statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 4 January 1946.  After having had prior
enlisted and commissioned service, he enlisted in the Army National Guard
on                 4 February 1984.  His notification of eligibility for
retired pay at age 60 (his       20-year letter) was prepared on 12 March
1996.

2.  On 3 April 1996, the applicant completed a DD Form 1883 and elected to
participate in the RCSBP for child only coverage (for a child born on 1
January 1978), full base amount, option C.  He was not married at the time.

3.  The applicant married on 24 November 2000.  On 4 December 2000, he
completed a DD Form 1883 electing to participate in the RCSBP for spouse
only coverage, full base amount, option C.

4.  On 17 February 2004, in applying for retired pay, the applicant
completed a DD Form 2656.  On this form, he indicated that he elected to
participate in the standard SBP for spouse only coverage, full base amount.

5.  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.

6.  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.  Once a member elects either Option B or C in any category of coverage,
that election is irrevocable.  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 had the member died prior to age 60.

7.  Title 10, U. S. Code, section 1448(a)(5) provides that a person who is
not married and 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.  (The Defense Finance and Accounting Service
(DFAS) interprets the phrasing of the first sentence of this section to
read, “…is not married or has no dependent child.…”)

8.  On 25 June 2006, DFAS informed the Board analyst that DFAS apparently
never received the applicant’s DD Form 1883 dated 4 December 2000.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not married when he completed his original DD Form
1883 in April 1996 and elected to participate in the RCSBP for child only
coverage.

2.  The applicant married on 24 November 2000.  It appears he attempted to
inform DFAS that he desired spouse RCSBP coverage by completing a new    DD
Form 1883 on 4 December 2000.  It appears DFAS never received this form.

3.  The law does not require that a specific form be used to request RCSBP
coverage after a post-retirement [eligibility] marriage, only that 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.

4.  Although it appears DFAS never received the DD Form 1883 dated
      4 December 2000, it would be equitable to accept that form as
evidence that the applicant made a proper request within the proper
timeframe to add spouse coverage to his RCSBP election.  The applicant’s
records should therefore be corrected to show he had spouse and child
coverage in effect at the time he turned age 60.

5.  RCSBP participants do not make a new election once they turn age 60.
Their RCSBP election rolls over into the standard SBP.  Even though the
applicant’s child is no longer a dependent, once 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 had the member
died prior to age 60.  Therefore, his child RCSBP costs may still be
required to be paid.

BOARD VOTE:

__kan___  __sap___  __eem___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 that he made and signed a written request to add spouse coverage
  to his Reserve Component Survivor Benefit Plan election and that his
request was received by the Secretary concerned within one year of his
marriage on     24 November 2000.




                                  __Kathleen A. Newman__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070001368                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070710                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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