IN THE CASE OF:	  

		BOARD DATE:	        16 JULY 2009

		DOCKET NUMBER:  AR20090005403 


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 records to reflect his spouse as the sole beneficiary of his Survivor Benefit Plan (SBP) coverage instead of his son on the date his son turned 21.

2.  The applicant states that he was advised to make his son a beneficiary of his SBP benefits until his son turned 21 and that after he became of age, his (the applicant's) spouse would become the beneficiary of his SBP.  

3.  The applicant provides a copy of his marriage license, dated 9 January 1981, and a copy of his Retiree Account Statement, dated 26 January 2009, in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was born on 8 August 1952 and initially entered active military service on 16 September 1974.  He served in various assignments within and outside of the continental United States.  He attained the rank of staff sergeant (SSG)/E-6.  He married his spouse, E_____, on 
16 January 1981. 

2.  On 18 June 1993, the applicant submitted a request for voluntary retirement, effective 1 May 1994, and on 21 June 1993, his request was approved.


3.  On 3 February 1994, the applicant completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated that he was married and had a dependent child, N______, born on 12 March 1987.  He further elected SBP coverage for "dependent children only."  He and his spouse, E_____, having been fully informed and counseled concerning the options available under the SBP, authenticated this form by placing their signatures and dates in the appropriate section.

4.  The applicant’s records show he was honorably retired in the rank/grade of SSG/E-6 on 1 May 1994.  He was credited with over 20 years of faithful active Federal service.  

5.  The applicant’s son turned 21 years of age on 12 March 2008 and 22 years of age on 12 March 2009.

6.  There is no indication that the applicant requested to change his SBP coverage from "dependent children only" coverage to "spouse" coverage during an Open Season.

7.  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. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

8.  Child coverage and premiums are automatically suspended when the last remaining eligible child loses eligibility; however, while pursuing a full-time course of study or training, a child whose 22nd birthday occurs before July 1 or after August 31 of a calendar year, is considered to be 22 years of age on the first day of July after that birthday; therefore, child premiums will automatically be suspended effective July 1 when such a child is the last remaining eligible child.

9.  A member married at retirement, who declines SBP spouse coverage, cannot later enroll in the plan on behalf of that spouse or any future spouse unless during a Congressionally approved open enrollment period (emphasis added).  Normally penalties and extra charges are assessed during these periods.

10.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  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 one-time, lump sum enrollment premium.  Extensive publicity was given in Army Echoes.  Army Echoes also warned that for a retiree with a high number of years since first being able to enroll a beneficiary in the SBP and whose retired pay was fairly high, the enrollment premium alone could exceed $50,000.

11.  The National Defense Authorization Act for Fiscal Year 2005 established 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that prior to his retirement, the applicant elected "children only" SBP coverage.  As was required by law, his wife at the time, E_____, concurred with his election and authenticated this election by placing her signature in the appropriate place on the DA Form 4240.

2.  When the applicant initially chose "children only" SBP coverage, he irrevocably forfeited future spouse coverage except during a Congressionally-approved open enrollment period.  The applicant retired on 1 May 1994.  The next available Open Seasons during which the applicant could have enrolled with his spouse as beneficiary were either 1 March 1999 – 29 February 2000 or 1 October 2005 to 30 September 2006.  He did not do so.  Therefore, there is no error or injustice in his record.

3.  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.

4.  While the available evidence is insufficient for awarding the applicant relief in this case, this in no way affects his right to seek professional advice from a retirement services officer or any other SBP professional regarding the true nature of the cost associated with enrollment during an Open Season which includes monthly premiums starting on the date of enrollment and a substantial 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.  If after such knowledge or learning of the true cost associated with such enrollment the applicant still desires enrollment for spouse coverage, he should look at each issue of Army Echoes he receives for information on the next SBP Open Season.

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)                                         AR20090005403



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ABCMR Record of Proceedings (cont)                                         AR20090005403



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