IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080004937 


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, in effect, that his Reserve Component Survivor Benefit Plan (RCSBP) election be changed from dependent child coverage to spouse coverage and that he be refunded past SBP premiums paid.

2.  The applicant states that he married L_____ B. S_______ on 21 December 2002.  At the time of his marriage, he was in the Individual Ready Reserve.  He notified the Retirement Office in St. Louis, Missouri and sent a copy of his marriage certificate.  His Retiree Account Statement lists his wife as his beneficiary for 100 percent.  In June 2007, the Retirement Services Personnel Office at Fort Jackson, South Carolina informed him that he and his wife could not apply for her support after his death because they did not complete the form within one year of their marriage date.  At the same time, he was told that his daughter could not receive any support because she was 39 years old.  He was told that his daughter’s eligibility for support stopped on her 18th birthday.  He wrote to his congressman in Michigan and in turn, the congressman wrote to the Army Retirement Office.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) for the period ending 19 November 1976; his NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) for the period ending 31 March 1992; his Retiree Account Statement, effective date 7 June 2006; a congressional letter, dated 12 September 2007; a letter from the Transition and Separations Branch, U.S. Army Human Resources Command, 
St. Louis, Missouri; a letter from the Case Management Division, Army Review Boards Agency, Arlington, Virginia; and a letter from the Army Review Boards Agency, Support Division, St. Louis, Missouri.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 3 February 1944.  He married his first wife on 21 October 1967 and he was divorced on an unknown date.  

2.  After having had prior service in the U.S. Navy Reserve and the Regular Army, he enlisted in the Army National Guard on 12 July 1978.  

3.  The applicant’s notification of eligibility for retired pay at age 60 (20-Year Letter) is dated 15 March 1988.  He completed a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) on 13 July 1988 and enrolled in the RCSBP for dependent child coverage only, full base amount, option C.  His RCSBP Election Certificate indicates that he was not married at the time of his election.  

4.  The applicant retired on 1 April 1992.  

5.  The applicant remarried on 21 December 2002. 

6.  The applicant reached age 60 on 3 February 2004.  

7.  The applicant's Retiree Account Statement, dated 7 June 2006, shows that a premium for RCSBP coverage for child(ren) only had been deducted from his retired pay.  This represents the cost of coverage for his child-only coverage while it was effective.  This statement also shows his marital status as married.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or authorized by law.

9.  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.  

10.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  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.

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.

12.  The Defense Finance and Accounting Service interprets the first part of Title 10, U.S. Code, section 1448(a)(5) to mean, “…who is not married OR has no dependent child….”

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received his 20-Year Letter on 15 March 1988.  He was not married at the time.  He completed the DD Form 1883 by electing dependent child only coverage, Option C.  

2.  The applicant retired on 1 April 1992.  At the time he retired, he was not married.  

3.  The applicant remarried on 21 December 2002.  However, there is no evidence which indicates he elected to request spouse RCSBP coverage within one year of his remarriage, as required by law.  There is no evidence to show he attempted to obtain information, upon their marriage, on how to add spouse coverage.  

4.  It appears that he started drawing retired pay effective 1 March 2004.  He should have been receiving Retiree Account Statements since that time indicating he was not paying for SBP spouse coverage.  There is no evidence to show he attempted to enroll for spouse coverage during the 1 October 2005 to 30 September 2006 Open Season.  
5.  The applicant is not entitled to a refund of SPB premiums deducted from his retired pay.  Like all non-regular retirees, SPB premiums are not deducted until the member begins to receive retired pay at age 60.  The premiums deducted are for that past coverage.

6.  Regrettably, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  __xx____  ___xx___  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.




       _    __xxxx_   ___
       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)                                         AR20080004937





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ABCMR Record of Proceedings (cont)                                         AR20080004937



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