IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100013913 


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, the spouse of a former service member (FSM), requests entitlement to Survivor Benefit Plan (SBP) coverage effective 18 October 2002.

2.  The applicant states there is no SBP coverage.  She believes her signature was forged so that SBP would not be elected.  She never signed a DD Form 2656 (Data for Payment of Retired Personnel) indicating that SBP was not elected.  She states the FSM abandoned her.

3.  The applicant provides a copy of her marriage license, a copy of her husband's Retired Reserve orders, and a copy of the FSM's National Guard Bureau Form 22 (Report of Separation and Record of Service).

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 19 October 1942 and enlisted in the Texas Army National Guard (TXARNG) on 15 August 1966.  He served through multiple extensions or reenlistments in the TXARNG and attained the rank of sergeant major (SGM).

2.  On 16 March 1989, TXARNG issued the FSM 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 20  July 1989, the FSM applicant completed a DD Form 1883 (Survivor Benefit Plan Election Certificate).  He indicated he was not married and further elected "children only" coverage, full amount, option B (age 60), under the Reserve Component SBP (RCSBP).

4.  On 2 July 1992, the FSM married the applicant.

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

6.  On 18 July 2002, he submitted a DD Form 108 (Application for Retired Pay Benefits) requesting a retirement date of 19 October 2002.  In connection with his application, the FSM completed a DD Form 2656-6 and indicated he was married to the applicant and elected "spouse only" 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.

7.  On 4 September 2002, the U.S. Army Reserve Personnel Command, St. Louis, MO, published Orders P09-280060 placing the FSM on the Retired List in his retired rank of SGM effective 19 October 2002, his 60th birthday.

8.  On 22 October 2002, TXARNG issued Orders 295-1023 discharging the FSM from the ARNG and transferring him to the Retired Reserve effective 18 October 2002.

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.  Since its creation, it has been subjected to a number of substantial legislative changes.

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 and eligible to participate in the SBP, 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 option 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.

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

14.  The National Defense Authorization Act for Fiscal Year 2005 established an Open Season for enrollment to be conducted 1 October 2005 to 30 September 2006.  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 applicant contends she should be entitled to SBP coverage effective 18 October 2002.

2.  The evidence of record shows that upon receipt of his 20-year letter, the FSM executed a DD Form 1883 on 20 July 1989, electing "children only" coverage under option B.  He did not have a spouse at the time.  He and the applicant were married some 3 years later on 13 July 1992.  The law permitted him to add his spouse within 1 year of their marriage.  He did not do so.  Further, applicant had no right to concur or non-concur in his decision.  There is no evidence of fraud or forgery.

3.  Subsequent to the applicant's marriage, the law established two Open Seasons to be conducted 1 March 1999-29 February 2000 and from 1 October 2005 to 30 September 2006, thus allowing the FSM another opportunity to enroll his spouse in the SBP.  He did not do so.  He completed a DD Form 2656-6 on 18 July 2002 in conjunction with his retirement application; however, there was no open season in effect at the time he completed the DD Form 2656-6.  Therefore, the "spouse only" election was invalid and the DD Form 2656 was never processed.

4.  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 FSM and applicant were married on 13 July 1992.  Having previously completed his DD Form 1883 and still being in a TXARNG unit during the 1999 - 1999 Open Season, the FSM knew or should have known of the requirements to change his desired coverage or at least to inquire about adding his spouse had he decided to do so.

5.  In view of the circumstance 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)                                         AR20100013913



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013913



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1