IN THE CASE OF:	  

		BOARD DATE:	    21 September 2010

		DOCKET NUMBER:  AR20100006903 


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 military records be changed to show he elected spouse and children coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, that he needs his spouse added to his SBP.  The applicant states that the U.S. Army Human Resources Command, St. Louis (HRC-STL) denied his request to add his spouse to his SBP because he did not submit his request within one year after his remarriage. 

3.  The applicant provides:

* State of New Jersey Birth Registration Certificate, dated 2 October 
1964
* State of Alabama Certificate of Marriage, dated 23 February 2007
* DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate), dated 27 February 2009
* HRC-STL memorandum, dated 16 November 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he was born on 23 July 1963.  He had prior active duty service.  On 1 January 1994, the applicant enlisted in the Louisiana Army National Guard (LAARNG) and on 18 April 2002, he interstate transferred to the Mississippi Army National Guard (MSARNG). 


2.  On 5 May 2005, the Joint Force Headquarters, Mississippi National Guard, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

3.  On 14 September 2006, the FSM applicant completed a DD Form 2656-5 (Reserve Component Survivor Benefit  Plan (RCSBP) Election Certificate).  He indicated that he was not married and further elected "children only" coverage, full amount, option C (Age 60).  

4.  On 31 August 2006, the applicant was discharged from the Army National Guard and transferred to the Retired Reserve.  

5.  On 23 February 2007, the applicant married.

6.  There is no indication the FSM requested a change to his RCSBP coverage to spouse coverage within 1 year of his marriage.

7.  On 27 February 2009, the applicant completed a DD Form 2656-6 and indicated that he was married and elected spouse and children SBP coverage based on the full gross pay without supplemental SBP.  He and a witness authenticated this form by placing their signatures in the appropriate blocks. 

8.  On 16 November 2009, HRC-STL returned without action the applicant's application to change his SBP election to include his spouse due to not submitting his request within one year of marriage.  

9.  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.  

10.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who 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 were 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.

11.  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 – the options automatically roll into SBP coverage.  

12.  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 military records should be changed to show he elected spouse and children coverage under the SBP.   

2.  A DD Form 2656-5 shows that 14 September 2006 the applicant elected children only SBP coverage under Option C.  He did not have a spouse at the time.  He and his spouse were married some 5 months later, on 23 February 2007.  The law permitted him to add his spouse within 1 year of their marriage.  He did not do so.  

3.  The applicant completed a DD Form 2656-6 on 27 February 2009.  However, there was no Open Season in effect at the time he completed the DD Form 
2656-6.  Therefore, the DD Form 2656-6 was never processed.  

4.  Congress periodically establishes Open Seasons, and the applicant should carefully review issues of Army Echoes, a bulletin provided to retirees (and gray-area retirees, provided they keep their addresses up-to-date) several times a year, for news of the next Open Season.  While the available evidence is insufficient for awarding the applicant relief at this time, this in no way affects the applicant 's 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.  

5.  The decision to enroll in or disenroll from the SBP/RCSBP is a personal decision, made by the member and his/her family.  In this case, the applicant and his spouse were married on 23 February 2007.  Having previously completed his DD Form 2656-5, the applicant knew or should have known of the requirements to change his desired coverage or at least to inquire about adding his spouse. 

6.  In view of the circumstances of this case, the applicant is not entitled to relief.

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)                                         AR20100006903





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)