IN THE CASE OF:	  

		BOARD DATE:	        05 MAY 2009

		DOCKET NUMBER:  AR20080019028 


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 records be corrected to change his Survivor Benefit Plan (SBP) election from children-only to spouse-only.

2.  The applicant states that at the time that he elected to participate in the Reserve Component  SBP (RCSBP) on 5 May 1991, he was divorced and unmarried and chose to elect the children-only option for his three young sons.  He states that his children are over 22 years of age and cannot receive the benefits.  He states that he was not informed on 5 May 1991 that if he remarried he had 1 year to make changes.  He states that in January 2007 he was checking all of his records and getting everything completed before his retirement when he discovered that he had never changed his election after he remarried.  He states that he completed a form to change his option and he was informed by the Human Resources Command, St. Louis, Missouri, that he could not change his RCSBP election until an Open Season and that there would not be another Open Season until a vote was made by Congress in approximately 5 years or so. 
He states that if he were to die right now his spouse would receive nothing because he is not allowed to make a simple change that affects not only him, but hundreds of others that are in the military.

3.  The applicant provides in support of his application a copy of his DD Form 1883 (Survivor Benefit Plan Election Certificate) dated 5 May 1991; a statement acknowledging that he was counseled regarding the SBP dated 5 May 1991; one page of a notification pertaining to SBP options, signed by the applicant and his 

then spouse acknowledging that they understood the elections that they were making; a copy of Orders 018-804 dated 18 January 2008, discharging him from the Army National Guard and assigning him to the Retired Reserve; a copy of a letter from a Member of Congress, addressed to the applicant dated 8 October 2008; and a copy of a memorandum authored by the Arkansas Army National Guard (ARARNG), Deputy Chief of Staff, Personnel dated 6 August 2008, addressing the letter from the Member of Congress.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 4 February 1952 and he enlisted in the ARARNG for 6 years on 12 December 1970 in the pay grade of E-1.  He remained in the ARARNG through a series of reenlistments and extensions.

2.  The applicant was promoted through the ranks to staff sergeant with a date of rank of 24 February 1978.

3.  On 11 March 1991, while serving in the rank of staff sergeant, the applicant received his Notification of Eligibility for Retired Pay at Age 60, also known as a 20-year letter.  At that time the applicant had been married to his then current spouse since 15 June 1990.

4.  The applicant's records show that on 5 May 1991 he completed a DD Form 1883 and elected to participate in the RCSBP for children-only coverage (for three children born on 24 December 1974, 30 December 1976, and 1 August 1983, presumably from a previous marriage), full base amount, option C.  The applicant and his then current spouse both signed the DD Form 1883 indicating that they understood that the decision they made with respect to participation in the SBP was a permanent irrevocable decision.

5.  The applicant and his then spouse separated less than 1 month later on 1 June 1991 and they divorced on an unknown date.  He married on 7 May 1993.

6.  On 13 November 1992, the applicant was promoted to the rank of sergeant first class.  He was promoted to the rank of master sergeant on 4 October 2002 and on 2 January 2008 he was promoted to the rank of sergeant major.

7.  The applicant was honorably discharged from the ARARNG on 3 January 2008 and he was transferred to the Retired Reserve.


8.  On 28 January 2008, the applicant completed a DD Form 2656-5 (RCSBP Election Certificate) in which he elected spouse-only coverage, option C, full retired pay.  In the remarks section of the DD Form 2656-5 he indicated that he wanted to keep option C, full retired pay amount, and that he wanted to change the type of coverage from children-only to spouse-only.  On the same date, he also submitted a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate) in which he indicated that he had elected children-only coverage and that he wanted to resume his existing level of coverage for his new spouse.

9.  The memorandum from the ARARNG Deputy Chief of Staff for Personnel, dated 6 August 2008, and the letter from the Member of Congress, dated 8 October 2008, indicate that the applicant contacted his representative and he was informed that he should submit an application to the ABCMR if there are extenuating circumstances that are not evident in his request to be allowed to change his coverage.

10.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

11.  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.  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 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 should the member have died prior to age 60.

12.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  


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

14.  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 1 year after the date on which that person marries or acquires that dependent child.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to change his SBP election from children-only to spouse-only.

2.  The applicant submitted a DD Form 1883 electing children-only coverage.  At the time he submitted the DD Form 1881 on 5 May 1991, he was married to his then spouse.  Both he and his then spouse signed the DD Form 1883 acknowledging that they understood that the decision made with respect to participation in the SBP is a permanent irrevocable decision.

3.  The applicant's contentions have been noted.  However, although he divorced and later remarried on 7 May 1993, he still would not have been eligible to change his SBP election to include spouse coverage within 1 year as he contends he was informed because he had already been afforded an opportunity to elect spouse coverage and he and his then spouse elected not to do so.

4.  In addition, the applicant remarried in 1993 and was a unit member until January 2008, during a period of time in which there were two SBP Open Seasons.  Extensive publicity is given to Open Seasons.  As a senior noncommissioned officer who declined spouse coverage when he completed his DD Form 1883 he had a responsibility to himself and his family to look into enrolling in the SBP for spouse coverage during one of those Open Seasons.

5.  The applicant's only option at this time is to change his election during the next Open Season to the spouse and children SBP option.

6.  In order to justify correction of a military record the applicant must show 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.


7.  In view of the foregoing, there is no basis for granting the applicant’s request.

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.



      __________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)                                         AR20080019028



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ABCMR Record of Proceedings (cont)                                         AR20080019028



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