IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080006469 


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 correction of his military records to show he enrolled in the Survivor Benefit Plan (SBP) for spouse coverage, full base amount.

2.  The applicant states, in effect, when he submitted his application for retired pay in March 2007, both he and his spouse declined SBP coverage.  He also states, since that time, their situation has changed whereby his spouse will need the additional income if he predeceases her.  The applicant further states that he understands that, if this request is favorably considered, he will be required to pay the back premiums.  He adds that, since he just recently turned age 60 on
27 March 2008 and became eligible for retired pay, the total amount of back premiums should be minimal.

3.  The applicant provides a copy of his DD Form 2656 (Data for Payment of Retired Personnel), dated 29 March 2007 and DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate), dated 31 March 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that his date of birth is 27 March 1948.

2.  The applicant’s military service records show that he enlisted in the U.S. Air Force on 28 November 1966, served continuously on active duty, and was honorably discharged on 1 July 1977.  At the time, the applicant was credited with completing 10 years, 7 months, and 4 days total active service and 10 years, 8 months, and 29 days total service for pay.
3.  The applicant’s military service records shows that he enlisted in the Army National Guard (ARNG) of Iowa on 17 September 1977 for a period of 1 year and he was honorably discharged on 16 September 1978.  At the time, the applicant was credited with completing 1 year, 0 months, and 0 days net service this period; 10 years, 8 months, and 29 days prior service; and 11 years, 8 months, and 29 days total service for pay.

4.  The applicant’s military service records contain a copy of Headquarters, Iowa ARNG, Office of The Adjutant General, Camp Dodge, Johnston, Iowa, memorandum, prepared 1 December 1996, subject:  Notification of Eligibility for Retired Pay at Age 60.  In pertinent part, this document shows that the applicant was notified that, having completed the required years of service, he was eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10, U.S. Code, Chapter 67.  

5.  The applicant’s military service records contain a DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 21 January 1997.  This document shows in Section II (Marital, Dependency, and Election Status), Item 6 (Are you married?) an "X" was placed in the "Yes" block; Item 7 (Do you have dependent children?) an "X" was placed in the "No" block; and Item 8 (Check one of the following to indicate the type of coverage you desire:) an "X" was placed in line-item e (None).  Section III (Family Information) shows, in pertinent part, that the applicant’s spouse is identified as Susanna R. N_______ and that they were married on 15 July 1970 at Santa Maria (Santa Barbara County), California.  Section V (Additional Information), Item 18 (Is this the only election of coverage you have submitted under the new Survivor Benefit Plan?), shows an “X” was placed in the “Yes” block.  Section VI (Signatures) shows that the applicant and a witness placed their signatures on the DD Form 1883 on 21 January 1997.

6.  The applicant’s military service records contain a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), with an effective date of 1 May 1997.  This document shows that the applicant enlisted in the Iowa ARNG on 18 April 1988, was honorably discharged in the rank of Sergeant (SGT)/pay grade E-5 on 1 May 1997, and transferred to the Retired Reserve.  At the time, he was credited with completing 9 years, 0 months, and 14 days net service this period; 1 year, 1 month, and 25 days prior Reserve Component service; 10 years, 7 months, and 4 days prior active Federal service; and
20 years, 9 months, and 13 days total service for pay.

7.  The applicant’s military service records contain a DD Form 2656 (Data for Payment of Retired Personnel), dated 29 March 2007.  In pertinent part, this document shows in Section VIII (Dependency Information) the applicant’s spouse is identified as Susanna R. N_______ and they were married on 15 July 1970 at Santa Maria, California.  Section IX (Survivor Benefit Plan (SBP) Election), Item 26 (Beneficiary Category) shows that an “X” was placed in block g (I Elect Not to Participate in SBP) and that the applicant indicated he had eligible dependents under the plan.  Section XI (SBP Spouse Concurrence), Item 30 (Spouse), contains the statement “I hereby concur with the Survivor Benefit Plan election made by my spouse.  I have received information that explains the options available and the effects of those options.  I know that retired pay stops on the day the retiree dies.  I have signed this statement of my free will.”  Section XI also shows the applicant’s spouse and a witness placed their signatures on the DD Form 2656 on 29 March 2007 and Section XII (Certification) shows that the applicant and a witness also placed their signatures on the DD Form 2656 on
29 March 2007.

8.  In support of his application, the applicant provides the following documents.

     a.  A copy of his DD Form 2656 (Data for Payment of Retired Personnel), dated 29 March 2007, which was previously introduced and considered in this Record of Proceedings.

     b.  A DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate), dated 31 March 2008.  Section II (Current Coverage), Item 7 (My Current Coverage Is:), shows that an “X” was placed in the “No Coverage” block.  Section III (Conditions That Trigger Eligibility To Change Coverage), Item 8 (I am requesting a change in coverage based on:), shows that an “X” was placed in the “Marriage” block.  This block states, “A member, who does not have a spouse at the time of initial eligibility, may provide SBP for the first spouse acquired after retirement by electing coverage before the first anniversary of that marriage.  Coverage and cost begin on the first anniversary of the marriage.”  Section IV (Requested Change to Coverage), Item 9 (Place and X in the Appropriate Box to Indicate Your Election), shows that an “X” was placed in the “Spouse Only” block.  Section V (Level of Coverage), Item 10, shows an “X” was placed in the “Full Retired Pay” block.  Section VII (Spouse and Child(ren) Information), in pertinent part, shows the applicant’s spouse is identified as Susanna R. N_______ and that they were married on 15 July 1970.  Section VIII (Member Signature) shows the applicant and a witness placed their signatures on the
DD Form 2656-6 on 31 March 2008.

9.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Component Soldiers.  Paragraph 2-3 (Notification of retired pay eligibility) provides under section 1331(d) of Title 10, United States Code, each Reserve Component Soldier who completes the service required under paragraph 2-1 to be eligible for retired pay at age 60 under this regulation will be notified in writing within 1 year after he or she has completed that service.  This notification will be issued by the Commanding General, U.S. Army Personnel Center, or Chief, National Guard Bureau, as applicable, at the time 20 satisfactory years of service is completed.  The notification will be issued to those individuals credited with
20 years of qualifying service prior to discharge or transfer to the Retired Reserve.

10.  Public Law 95-397, the Reserve Component Survivor Benefit Plan, 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; or (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.  An election, once made, is irrevocable except under certain circumstances provided for by law.

11.  Title 10, United States Code, section 1448, provides that if a person makes an election not to participate in the SBP, the person's spouse shall be notified of that election.  Spousal concurrence is needed when a married person declines coverage, elects to provide an annuity for his/her spouse at less than the maximum level, or elects to provide an annuity for a dependent child(ren), but not for his/her spouse.

12.  Army Regulation 135-180, Chapter 3 (Reserve Component Survivor Benefit Plan), provides policies and procedures for implementing Public Law 95-397, as amended.  Paragraph 3-2 (General) provides that the Reserve Component Survivor Benefit Plan (RCSBP) allows Reserve Component Soldiers and former Soldiers who have received notification of their eligibility for retired pay at age 60, to provide a survivor annuity for their dependents should the Soldier or former Soldier die before reaching age 60 and receipt of retired pay.  Coverage is not automatic.  Those eligible must elect one of the three options offered on the Survivor Benefit Plan Election Certificate (DD Form 1883).  All eligible have
90 days from date of receipt of the DD Form 1883 to make their election and return the form to the appropriate office.  ARNG Soldiers will return the original copy of the DD Form 1883 through National Guard channels to Chief, National Guard Personnel Center, ATTN: NGB-ARP-CR, 5600 Columbia Pike, Falls Church, VA 22041-5125.  USAR Soldiers will return the original copy of the
DD Form 1883 to Commander, U.S. Army Human Resources Command (USA HRC), 9700 Page Boulevard, St. Louis, MO  63132-5200.  Failure of a Solder to initially elect coverage at this time does not preclude eligibility to subsequently elect survivor benefit coverage under the Survivors Benefit Plan with application for retired pay upon reaching age 60.  Under the authority of The Adjutant General, the RCSBP Board established at USA HRC may change or revoke an election when an administrative error or deficiency has occurred.  Except when procured by fraud, the correction is final and applies to all officers of the United States.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military records should be corrected to show he enrolled in the SBP for spouse coverage, full base amount, because his situation has changed whereby his spouse will need the additional income if he predeceases her.

2.  The evidence of record shows that the applicant was notified of his eligibility for retired pay at age 60 in December 1996.  The evidence of record also shows that the applicant completed an DD Form 1883 (SBP Election Certificate), on
21 January 1997, confirming that he was married to Susanna R. N_______ (at that time) and he declined SBP coverage.

3.  The evidence of record shows that the applicant submitted a DD Form 2656 (Data for Payment of Retired Personnel), on 29 March 2007, for the purpose of receiving retired pay at age 60.  The evidence of record also shows that the applicant confirmed that he was married to Susanna R. N_______ (at that time) and he declined SBP coverage.  The evidence of record further shows that the applicant’s spouse concurred with the applicant’s SBP election.

4.  The evidence of record shows an SBP election, once made, is irrevocable except under certain circumstances provided for by law.  There is no evidence, and the applicant provides insufficient evidence, to show that the SBP election he made (on two separate occasions) was in error or unjust.  Thus, there is no basis for correcting the applicant’s military service records in this case.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X____  ___X____  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.




      _______ _   _X______   ___
               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)                                         AR20080006469



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ABCMR Record of Proceedings (cont)                                         AR20080006469



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