IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20100022079 


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 his records be corrected to show he elected "spouse" Survivor Benefit Plan (SBP) coverage instead of "children only" coverage.

2.  The applicant states he retired on 1 June 2010.  He further states he designated his spouse as his beneficiary for SBP on a DD Form 2656 (Data for Payment of Retired Personnel).  His Retiree Account Statement (RAS) shows his SBP coverage as "children only."  He intends for his SBP beneficiary to be his spouse.  The Defense Finance and Accounting Service (DFAS) told him they have a DD Form 1883 (Survivor Benefit Plan Election Certificate), dated in 1991, which shows he designated his children as SBP beneficiaries and that the DD Form 1883 supersedes the DD Form 2656 he submitted upon retirement.  He contends he married on 22 February 1997 and submitted all necessary documents to change all of his benefits to his spouse.  He does not have a complete set of these records.  He concludes that resolution of this issue will be the designation of his wife as the beneficiary for his SBP as he has indicated on the enclosed DD Form 2656.

3.  The applicant provides:

* DD Form 2656
* DD Form 93 (Record of Emergency Data)
* SGLV Form 8286 (Servicemen's Group Life Insurance (SGLI) Election and Certificate)


CONSIDERATION OF EVIDENCE:

1.  The applicant’s records shows he was born on 15 April 1948.  He served in the Regular Army, U.S. Army Reserve, and the Army National Guard for various periods through multiple extensions or reenlistments beginning on 24 January 1967. 

2.  He was issued a 20-year letter on 24 June 1991.  He completed a DD Form 1883, dated 20 September 1991.  He indicated that he was not married but had two dependent children.  He elected the SBP option of children-only coverage, in the full amount, to be effective immediately. 

3.  On 22 February 1997, he married his spouse.  On 16 May 1997, he updated his DD Form 93 and SGLV Form 8286 to add his spouse and an additional child. 
These forms also show he designated his spouse as the sole beneficiary for his Death Gratuity, Unpaid Pay and Allowances, and SGLI benefits.  However, there is no indication he notified officials at the DFAS of his marriage or that he requested a change of RCSBP coverage to add his spouse within one year of his marriage.

4.  His records show he was retired on 31 May 2010 and placed on the retired list in his retired rank/grade of major (MAJ)/O-4 on 1 June 2010.  He was credited with 43 years, 4 months and 8 days of faithful honorable service.  

5.  On 2 May 2010, he completed a DD Form 2656 wherein he indicated he was married on 22 February 1997 and that he had a dependent child who was born on 21 January 1992.  He elected the SBP options of spouse-only coverage, in the full amount, to be effective immediately.

6.  He attests his Retiree and Account Statements shows he has children only SBP coverage based on the full amount. 

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.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), 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.

9.  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 one year after the date on which that person marries or acquires that dependent child.  

10.  The Defense Finance and Accounting Service interprets the first part of Title 10, U. S. Code, section 1448(a)(5) to mean, “…who is not married OR has no dependent child….”

11.  Public Law 105-261, enacted 17 October 1998, established an Open Season for enrollment to be conducted 1 March 1999 to 29 February 2000 for members not participating to the fullest possible extent.  The retiree was required to 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.

12.  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 evidence of record shows that the applicant made his initial RCSBP election on 20 September 1991, after he became retirement eligible.  He was not married at the time and opted for children only coverage.

2.  On 22 February 1997, he married his spouse and on 16 May 1997, he updated his personnel records by designating his spouse as the sole beneficiary for his Death Gratuity, Unpaid Pay and Allowances, and SGLI benefits.  He apparently took no action specific to the RCSBP.

3.  Since he married his spouse in February 1997, he's had three opportunities to add his spouse to his RCSBP coverage:

4.  When he failed to add his spouse within one year of their marriage, he irrevocably forfeited future spouse coverage except during a Congressionally-approved open enrollment period.  There has not been an Open Season since the last one that expired on 30 September 2006.  Enrollment of the spouse as beneficiary will not be possible until another Open Season is authorized.  

5.  In view of the foregoing evidence, he is not entitled to the requested 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)                                         AR20100022079





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ABCMR Record of Proceedings (cont)                                         AR20100022079



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