IN THE CASE OF:	  

		BOARD DATE:	       16 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080003750 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests 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 that he submitted his application for retirement on 19 November 2005 and he included his Data for Payment of Retired Personnel (DD Form 2656) in the application packet with Section IX indicating his election of coverage for his wife.  He states that along with his application was a return postcard to verify receipt of his package.  He states that after several telephone calls to the Army Human Resources Command (AHRC), he was informed by a representative that his package was received on 28 November 2005.  He states that he later received the postcard acknowledging receipt of his package and the postcard was dated 15 December 2005.  The applicant states that he called HRC on 27 November 2006 and he was told that everything looked to be in order and he would receive his retirement orders around 1 October 2007.  He states that by 15 October 2007 he was not in receipt of his retirement orders; therefore, he called AHRC and spoke with another representative.  He states that this representative told him that his application had not been assigned to an analyst and that he should call back on 2 November 2007.  

3.  The applicant states that he received his orders on 7 November 2007 and included in the package was the business card of an Annuity and Retirement Analyst at AHRC Personnel Actions and Services Directorate, Transition and Separations Branch.  He states that he forwarded electronic mail (email) to the Annuity and Retirement Analyst who called him on the same date.  He states that he was told by the analyst that his wife would be automatically covered by a change in Federal Law from 2000.  He states that he was told by the Annuity and Retirement Analyst that she was changing his data at the Defense Finance and Accounting Service (DFAS) Center, Cleveland, Ohio, to indicate an RCSBP election of full coverage option for his wife.  The applicant states that on 21 November 2007, DFAS issued a welcome letter and an analysis of his retired pay, which included a form DFAS-CL 7220/148.  He states that both the letter and the form clearly indicated that his RCSBP election had not been changed to reflect the selection of his wife and that this created a long series of telephone calls and emails to AHRC and DFAS.  He states that his efforts eventually led him to the Supervisor, AHRC Retired Pay Branch who told him that he should have made the open season election in November 2005.  

4.  The applicant states that the AHRC advised him of his option to apply to this Board and that he requested to be furnished a letter stating the same.  After several follow-up emails, he was finally furnished the letter postmarked 
28 January 2008.  The applicant states that the following information should be brought to the attention of the Board:  (1) he followed the advice of an AHRC representative; (2) he filed his application for retired pay in November 2005; (3) his application package was received by AHRC in November 2005; (4) his packet was not processed until after the open season; and (5) his retired pay packet was sitting at AHRC for almost 2 years.  The applicant concludes by stating that he believes he made every effort to have his RCSBP election changed when he became aware of the open season.  

5.  The applicant provides in support of his application, a copy of the Army Echoes dated September 2005 – December 2005; a cover letter dated 19 November 2005; a copy of his Application for Retired Pay Benefits dated 18 November 2005; a copy of his Chronological Statement of Retirement Points; a copy of his DD Form 2656, dated 18 November 2005; a copy of his Direct Deposit Sign-up Form; a copy of Orders 96-088-089 assigning him to the Retired Reserve; a copy of his License and Certificate for Marriage; a copy of his wife’s Certificate of Birth; a copy of a divorce decree dated 29 October 1985; and a copy of his Notification of Eligibility for Retired Pay at Age 60, dated 23 May 1989; copies of handwritten notes, envelopes and email; a copy of his Retiree Account Statement, dated 21 November 2007; and a copy of a letter from the AHRC Supervisor, Retired Pay Branch, notifying him of his wife’s ineligibility to receive SBP.





CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 14 November 1947.  After having had prior enlisted service, he was appointed as a Warrant Officer (WO1) in the United States Army Reserve.  His notification of eligibility for retired pay at age 60 (his 20-year letter) was prepared on 23 May 1989.

2.  On 8 September 1989, the applicant completed a DD Form 1883 and elected to participate in the RCSBP for children only coverage (for a child born on 26 January 1976 and a child born on 7 October 1977, full base amount, option C. He was not married at the time.

3.  The applicant married on 24 June 1995.  On 18 November 2005, in applying for retired pay benefits, he completed a DD Form 2656 electing to participate in the RCSBP for spouse only coverage, to be based on full gross pay without supplemental SBP, option A.

4.  The applicant was placed on the retired list on 30 April 1996.

5.  On 14 November 2007, the applicant reached age 60.

6.  On 24 January 2008, the applicant was notified by the Supervisor, Retired Pay Branch, AHRC, that his initial election on the DD Form 1883, Survivor Benefit Plan Election Certificate, dated September 1989, shows he elected children only and that changes could only be made during open season or due to a marriage, which required the election to be made within the 1 year timeframe.  He was told that when open season rolled around (1 October 2005 through
30 September 2006), he had the opportunity to add his spouse at that time.  The Supervisor, Retired Pay Branch, stated that the applicant contended that he called AHRC, St. Louis, Missouri, in November 2005 to get assistance in filling out his packet and to make a spouse only change and was told by the customer contact office that he did not have to make the change at that time.  The Supervisor, Retired Pay Branch stated that the applicant contended he was told to just change it in his Application for Pay Packet and that the information was incorrect.  In the notification, the applicant was advised that his packet was processed after the open season, therefore, his wife was ineligible to receive SBP.  He was informed that his only recourse of action was to submit an application to this Board.



7.  During the processing of this case, an advisory opinion was obtained from the Chief, Retired Pay Branch, AHRC, who is of the opinion that favorable action should be taken in the applicant’s case.  The Chief, Retired Pay Branch stated 
that after careful review of the available information, it appears the applicant did make an attempt to change his RCSBP option during open season and that he was given erroneous information.

8.  On 17 April 2008, a copy of the advisory opinion was forwarded to the applicant for his review and concurrence and he concurred with the advisory opinion on 21 April 2008.

9.  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. 

10.  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.

11.  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.…”)

12.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must have paid 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 was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not married when he completed his original DD Form 1883 in September 1989 and elected to participate in the RCSBP for children only coverage.

2.  The applicant married on 24 June 1995.  The available evidence shows the applicant attempted to inform DFAS that he desired spouse only RCSBP coverage by completing a DD Form 2656 on 18 November 2005 during an open season.  The evidence of record further shows that he never completed another DD Form 1883 based on erroneous information that he received from AHRC.

3.  Therefore, it would be equitable to accept the DD Form 2656 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.  

4.  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 children are no longer dependents, 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 election of child coverage was irrevocable.  

5.  In view of the foregoing, it would now be in the interest of justice to correct the applicant’s records as recommended below.

BOARD VOTE:

__XXX __  __XXX__  __XXX__   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 an Open Season on 18 November 2005.





      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003750



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ABCMR Record of Proceedings (cont)                                         AR20080003750



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