RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2008
	DOCKET NUMBER:  AR20070011867 


	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

Ms. Jeanne Marie Rowan

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. Donald L. Lewy

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 Reserve Component Survivor Benefit Plan (RCSBP) election be changed from Insurable Interest to Spouse Only coverage.

2.  The applicant states, in effect, that due to no fault of his own he did not submit his marriage certificate within one year of his date of marriage, nor did he prepare a written request within this same year to change his RCSBP Option of Insurable Interest to Spouse Only coverage.  He states, in effect, he telephonically contacted the Human Resources Command (HRC)-St. Louis for assistance numerous times, but he did not receive the requested assistance in how to effect the change to his RCSBP.

3.  The applicant provides the following documents in support of his application:

     a.  a copy of his marriage certificate, which shows his date of marriage is 30 October 1998;

     b.  Notification of Eligibility for Retired Pay at Age 60, dated 10 April 1995, which shows the applicant met the requirements for retired pay at age 60;    

     c.  a copy of DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 11 May 1995;

     d.  a copy of Orders Number 306-083, dated 2 November 1995, published by the Alabama Army National Guard (ARNG) which shows that the applicant was discharged from the ARNG, effective 1 November 1995, then transferred to the Retired Reserve;

     e.  a copy of DFAS-CL Form 7220 (Retiree Account Statement), dated 11 June 2007, which shows the applicant has SBP coverage for a Natural Interest Person and that he is paying RCSBP cost differential as well as SBP cost;

     f.  a copy of a self-authored letter, dated 12 July 2007, which shows the applicant requested to change his Natural Insurable Interest RCSBP Option to RCSBP Spouse Coverage; 

     g.  a letter from the Chief, Army Retirement Services, Office of the Deputy Chief of Staff G1, dated 8 August 2006 [sic], to the applicant denying his request to change his RCSBP from Insurable Interest to Spouse Only coverage; and 
     h.  a self-authored personal statement, dated 14 August 2007. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he was born on 17 May 1947.  He was inducted into the Army of the United States on 3 February 1966.  He was honorably discharged on 2 February 1968 after serving 2 years on active duty.  He was transferred to the United States Army Reserve where he was in an inactive status.  On 21 July 1973, he entered the Alabama Army National Guard and served in troop program units until his retirement from the ARNG on 1 November 1995. 

2.  On 10 April 1995, the Alabama State Military Department, Montgomery, Alabama, issued a Notification for Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 

3.  On 11 May 1995, the applicant completed DD Form 1883.  In Section II (Marital, Dependency, and Election Status), he indicated that he was not married, that he did not have dependent children, that he elected RCSBP Coverage for a "Natural Person with Insurable Interest," that he elected SBP coverage based on the full amount of his retired pay, and that he elected Option C which is immediate coverage payable upon his death.

4.  On 2 November 1995, the applicant was discharged from the ARNG and assigned to the Retired Reserve.

5.  On 30 October 1998, the applicant married his current spouse.

6.  On 17 May 2007, the applicant turned age 60 and was placed on the retired list in the Army of the United States in the rank and pay grade staff sergeant/E-6. 

7.  The applicant, in his self-authored statement dated 14 August 2007, states in pertinent part, that he verbally contacted the HRC-St. Louis in the Fall of 1998, around January 2002, and again around August 2006 [sic].  He states he requested assistance in changing his RCSBP coverage from his initial Insurable Interest to Spouse Only coverage based on the date of his marriage.  He states he received no assistance or instructions on how to submit his marriage certificate to effect the change in his SBP election.  

8.  When he requested his retirement pay in 2006, the applicant states that he elected Spouse Only coverage.  On 11 June 2007, he states in pertinent part, that he reviewed his Retiree Account Statement, which shows that he has Natural Interest Person SBP coverage and not SBP coverage for his spouse.  He contacted the Retirement Services Office at the Redstone Arsenal in Alabama for assistance.  The office did assist him in preparing a personal letter that was forwarded to the Chief of Retirement Services, Department of the Army, Office of the Deputy Chief of Staff G1.  The Chief, Army Retirement Services responded to the applicant in writing and denied the applicant's request to change his SBP election to Spouse Only coverage.  

9.  The Chief, Army Retirement Services stated, in effect, that the applicant was required by statute to submit his marriage certificate within one year from his date of marriage.  The Chief pointed out that the applicant had said in his letter that he did not inform HRC-St. Louis of his marriage until 2002.  Since the applicant did not submit his marriage certificate in the required one year, the applicant effectively closed the election for RCSBP Spouse Only coverage for his current spouse and all future spouses. The Chief, Army Retirement Services further stated, that when the applicant retired and became eligible to collect his retired pay at age 60, the Insurable Interest option that he elected on 11 May 1995 became his SBP election.  He was advised that he could stop the SBP premium for his Insurable Interest at any time, but that he would still be required to pay the RCSBP premiums for coverage already received. 

10.  Title 10, U. S. Code, section 12731(a)(d), states in pertinent part, a Soldier is entitled, upon application, to retired pay computed under section 12739 of this title if the Soldier is at least 60 years of age and has performed at least 20 years of qualifying service while a member of the reserve component of an armed force.  The Secretary concerned shall notify each Soldier who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the Soldier within one year after the Soldier completes that service.  The written communications shall include notice of the elections available to such persons under the SBP, the Supplemental SBP, and the effect of such elections.

11.  Public Law 95-397, the Reserve Component SBP, 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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay (costs for option C being the more expensive).  Once a member elects either Options B or C in spouse, former spouse, or dependent children, that election is irrevocable though certain exceptions are set forth in the statute.  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.

12.  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.

13.  Public Law 103-337, enacted 5 October 1994, allowed SBP insurable interest participants whose beneficiary is not their former spouse to voluntarily terminate their participation in the SBP.  A participant shall make any such termination by the submission to the Secretary concerned of a written request to discontinue participation in the SBP.  Such participation shall be discontinued effective on the first day of the first month following the month in which the request is received.  Once participation is discontinued, benefits may not be paid in conjunction with the earlier participation in the SBP and premiums paid may not be refunded.

14.  Public Law 108-375, enacted 28 October 2004, established an SBP Open Season from 1 October 2005 through 30 September 2006.  To apply, members were required to complete a DD Form 2656-9, Survivor Benefit Plan (SBP) and Reserve Component Survivor Benefit Plan (RCSBP) Open Enrollment Election.  Elections must have been submitted to the Service designated agent [Director, DFAS-US Military Retired Pay, PO Box 7130, London, KY 40742-7130] indicated in the instructions on DD Form 2656-9.  All elections were required to be postmarked by 30 September 2006.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that due to no fault of his own, he did not submit his marriage certificate within the first year of his marriage to the DFAS.  He contends that he verbally contacted the HRC-St. Louis after he married in October 1998, but that he received no information nor was he given instructions on how to add RCSBP Spouse Only Coverage.  In one of the applicant's self-authored statements, he states he contacted HRC-St. Louis three times.  

2.  When the applicant received his 20-Year Letter on 10 April 1995, he completed DD Form 1883 indicating that he was unmarried and desired RCSBP coverage for a natural person with insurable interest with an annuity based upon the full amount of his retired pay, with coverage to begin immediately (Option C).

3.  The applicant married on 30 October 1998.  By law, he had one year from the date of his marriage to change his RCSBP coverage to Spouse Only coverage.  There is no evidence, and the applicant provides none, to show he attempted to enroll in the RCSBP for spouse coverage within one year of his marriage.  To the contrary, he himself stated that he did not inform HRC-St. Louis of his marriage in writing until 2002.

4.  In August 2006, the applicant completed and submitted DD Form 2656 (Data for Payment of Retired Personnel) to HRC, St. Louis, Missouri.  In Section IX, he indicated that he elected to participate in the SBP with "Spouse Only Coverage" and that he also elected "Coverage to be based on Full Gross Pay without Supplemental SBP."  However, because the applicant elected Option 8D (Natural Person With Insurable Interest) when he received his 20-Year Letter in 1995, by law, he had the option of enrolling his spouse in RCSBP within one year from the date of marriage.  He did not comply with this requirement.  Therefore, when he applied for his retired pay, DFAS personnel did not act on his request to include his spouse in his SBP coverage based on the governing laws and regulations.

5.  The only legitimate periods during which the applicant could have enrolled his spouse in RCSBP or SBP coverage following the 1-year anniversary of their marriage were during authorized Open Seasons:  (1)  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted during the period 1 March 1999 to 29 February 2000; (2) the National Defense Authorization Act for Fiscal Year 2005 establishes an Open Season to be conducted 1 October 2005 to 30 September 2006.  It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  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 of these open seasons was given in Army Echoes.

6.  The applicant had legitimate opportunities to enroll his spouse in RCSBP from 1 March 1999 to 29 February 2000, and again from 1 October 2005 to 30 September 2006.  He did not attempt to enroll his spouse during these two SBP open seasons.  

7.  The applicant does have the option to prepare a written statement requesting that the SBP for his Insurable Interest stop.  The Insurable Interest SBP premiums will stop the month after receipt; however, the RCSBP portion will continue to be collected until it is paid in full for the RCSBP coverage by which he benefited from 11 May 1995 (date of his RCSBP election) to 17 May 2007 (date he reached 60 years of age and his RCSBP rolled over into SBP).

8.  Considering the evidence and information presented by the applicant, together with the evidence of record, applicable laws and regulations, it is concluded that there is no basis for granting relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS__  __ECP__  __DLL___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





____Linda D. Simmons__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.