IN THE CASE OF:	  

		BOARD DATE:	        9 September 2009 

		DOCKET NUMBER:  AR20090005872 


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 elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) with immediate spouse coverage.

2.  The applicant states, in effect, he was never made aware of the fact that he had to enroll his spouse in the RCSBP within 1 year after their marriage in order for her to be covered by the RCSBP.  He also states he was led to believe that if he updated the Dependent Enrollment Eligibility Reporting System (DEERS) his spouse would be covered.  The applicant adds he was no longer actively drilling and he was not married when he completed 20 years of service, his request to enroll his spouse in the RCSBP was recently disapproved, and he was told he would have to wait until age 60 before he can enroll her in the plan.
He concludes by stating he understands that if he had been actively drilling at the time of his marriage, his spouse would have been automatically covered by the RCSBP.

3.  The applicant provides, in support of his application, a DD Form 2656-6 (Survivor Benefit Plan (SBP) Election Change Certificate); Certificate of Marriage; and Headquarters, U.S. Army Human Resources Command (USA HRC), St. Louis, Missouri, letter, dated 11 March 2009.



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard (ARNG) on 20 August 1980.  His date of birth is 7 December 1960.  He was ordered to active duty for training and awarded military occupational specialty 11B (Infantryman).

 2.  Headquarters, Iowa National Guard, Office of the Adjutant General, Johnston, Iowa, memorandum, dated 18 September 2000, notified the applicant that, having completed the required years of service, he will be eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10, U.S. Code, section 1223.  This document also shows that attached as enclosures were, in pertinent part, NGB Form 23A (Army National Guard Current Annual Statement) and a Survivor Benefit Plan Summary.  His DD Form 1883 (Survivor Benefit Plan Election Certificate) shows he elected to participate in the RCSBP for children only coverage, option C, full base amount.  It also indicated he was not married.

3.  Headquarters, Iowa National Guard, Office of the Adjutant General, Johnston, Iowa, memorandum, dated 9 March 2001, informed the applicant that the Qualitative Retention Board met and the Adjutant General approved the applicant's continued retention in the ARNG.

4.  The applicant's NGB Form 22 (Report of Separation and Record of Service) shows he enlisted in the Iowa ARNG on 20 August 1980, was honorably discharged on 30 September 2002, and transferred to the U.S. Army Control Group (Retired Reserve) effective 1 October 2002.  At the time he had completed 22 years, 1 month, and 11 days of net service this period and total service for retired pay.  Item 18 (Remarks), in pertinent part, shows the applicant was issued his "20-Year" letter on 18 September 2000 and that he elected SBP Option "C."

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

   a.  A copy of his State of Iowa, County Record, Certificate of Marriage, that shows he married Sandra Jean B______ V____ on 6 August 2005.
   
   b.  Survivor Benefit Plan Election and Change Certificate, dated 22 February 2008, that shows the applicant indicated his current SBP coverage is "child only"; based on remarriage he requested to resume the existing level of coverage for his new spouse; he requested "spouse only" coverage; and elected a level of coverage based on full retired pay.  This document also shows the applicant indicated he married Sandra J. S____ on 6 August 2005.

   c.  Headquarters, USA HRC, Transition and Separations Branch, St. Louis, Missouri, letter, dated 11 March 2009, advised the applicant that his request for enrollment in the RCSBP was being returned without action because he should have requested coverage before the first anniversary of his marriage.
6.  The applicant's military personnel records do not contain any documents related to his enrollment in the RCSBP or a request for change to his RCSBP.

7.  There is no evidence in the applicant's military personnel records that shows he took any action to notify the USA HRC requesting a change to the category of his SBP election to spouse coverage within 1 year of his marriage, as is required by law.

8.  In connection with the processing of this case, the Military Pay Operations - Cleveland, DFAS, Cleveland, Ohio, was asked to verify the status of the applicant's SBP.  A DFAS official confirmed the applicant was a future retiree and that the DFAS did not have any information on the applicant relating to his SBP.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provides 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.

10.  Pursuant to Title 10, U.S. Code, section 1448(a)(5), a retired member who marries after retirement and who, at the time of marriage, has no dependent children and has not previously elected for spouse coverage may, within one year of the marriage, elect to cover his spouse under the SBP.

11.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted from 1 October 2005 through 30 September 2006.  Extensive publicity was given this SBP Open Season in Department of Defense websites, 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), other Army publications, and by military veteran organizations.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he elected to participate in the RCSBP with immediate spouse coverage because he was never made aware of the fact that he had to enroll his spouse in the RCSBP within 1 year after their marriage in order for her to be covered by the RCSBP.

2.  Records show that on 18 September 2000 the applicant was notified he would be eligible for retired pay upon application at age 60; he was provided information on the SBP at that time, and he elected SBP Option "C" with child coverage.  Thus, the evidence of record does not support the applicant's contention that he was not made aware of the requirements to enroll his dependents in the RCSBP.

3.  Records show the applicant was transferred to the Retired Reserve effective
1 October 2002 and the date of his marriage was 6 August 2005.  The applicant's argument that had he been actively drilling at the time of his marriage, his spouse would have been automatically covered by the RCSBP is incorrect.  The applicant would still have had to notify proper authorities of his marriage and request spouse coverage within 1 year, even if drilling at the time of his marriage.

4.  By law, incident to a member's marriage/remarriage, a member who has no dependent children and has not previously elected for spouse coverage, has 
1 year to provide an annuity to his spouse by making such an SBP election.

5.  There is no evidence of record to show the applicant took the necessary action to notify USA HRC officials to change the category of his SBP election from child to spouse coverage within 1 year of his marriage (i.e., on 6 August 2005), as is required by law.  In this regard, the DD Form 2656-6 submitted by the applicant to change his SBP coverage was submitted well after the 1 year period and did not satisfy the strict requirement for spouse SBP entitlement.  In addition, there is no evidence the applicant submitted an application for spouse coverage during the SBP Open Season conducted from 1 October 2005 through 30 September 2006.  Thus, in view of all of the foregoing, there is no basis for correcting the applicant's military service records.  Therefore, relief cannot be granted in this case.

6.  The applicant is advised that contrary to advice he has apparently received, he will not have an opportunity to enroll his spouse in the RCSBP at age 60.  The applicant's only opportunity to enroll for spouse coverage will come, if and when, Congress next declares an 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.




      _______ _  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)                                         AR20090005872



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ABCMR Record of Proceedings (cont)                                         AR20090005872



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