IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100024346 


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 the beneficiary for his Survivor Benefit Plan (SBP) be changed to his spouse.

2.  He states:

	a.  he requested the change using the DD Form 108 (Application for Retired Pay Benefits) and DD Form 2656 (Data for Payment of Retired Personnel), block 26 (Beneficiary Category) and block 29 (Remarks), dated 1 April 2008; and

	b.  he was a single parent with three dependent children when he initially enrolled in the SBP on 18 August 1994.

3.  He provides:

* DD Form 1883 (Survivor Benefit Plan Election Certificate)
* marriage license
* letter to the U.S. Army Human Resources Command (HRC) 
* letter from HRC
* retirement orders
* DD Form 108
* DD Form 2656
* Retiree Account Statement (RAS)
* letter from the Defense Finance and Accounting Service (DFAS)


CONSIDERATION OF EVIDENCE:

1.  On an unspecified date, the Arizona Army National Guard issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified the applicant he had completed the required years of service and would be eligible for retired pay upon application at age 60.

2.  On 18 August 1994, he completed a DD Form 1883.  His date of birth is shown on this form as 10 October 1948.  He indicated he was not married at the time.  He elected coverage for children only based on the full amount of his retired pay under option C (immediate coverage).  His youngest child's date of birth was entered as 20 December 1986.

3.  On 30 May 1996, he and his current spouse were married in the State of Arizona.

4.  On 10 March 2008, he contacted HRC and requested retirement based on turning age 60 and requested that his spouse be added to his SBP.

5.  On 1 April 2008, he submitted a DD Form 108 which shows he applied for retired pay benefits effective 10 October 2008.

6.  On the same date, he completed a DD Form 2656 and indicated:

* he requested to change his coverage to spouse only based on full retired pay
* he requested a change of coverage based on marriage
* his children were no longer dependent

7.  On 15 July 2008, HRC informed him that his application for retired pay had been approved.

8.  Orders C-05-809800 issued by HRC, dated 21 May 2008, released him from the U.S. Army Reserve Control Group (Reinforcement) by reason of attainment of maximum age and assigned him to the Retired Reserve effective 31 October 2008.

9.  His RAS, dated 1 July 2010, shows he elected to participate in SBP and currently had child-only coverage based on the full amount of his retired pay.  The RAS shows Reserve Component (RC) SBP costs of $16.38.  The child's date of birth is shown as 20 December 1986.

10.  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.

11.  Public Law 95-397, enacted 30 September 1978, provided a way for RC 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.

12.  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.

13.  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.

14.  The National Defense Authorization Act for Fiscal Year 2005 established an open season from 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 his RCSBP election should be changed from children-only coverage to spouse coverage.

2.  The evidence of record shows the applicant executed an SBP Election Certificate on 18 August 1994 electing immediate coverage under option C for children-only coverage upon receipt of his 20-year letter.  He did not have a spouse at the time.

3.  He and his spouse were married 2 years later on 30 August 1996.  At that time, his election would have been sent to HRC because DFAS had not yet established a retired pay account as he was still under the age of 60.  The law permitted him to add his spouse within 1 year of their marriage.  He did not do so.  When he failed to add his spouse within 1 year of their marriage, he irrevocably forfeited future spouse coverage except during a Congressionally-approved open enrollment period.  The law established an open season from 1 October 2005 through 30 September 2006, thus allowing the applicant an opportunity to enroll his spouse in the SBP.  He did not do so.

4.  He appears to have completed a DD Form 2656 on 1 April 2008.  However, there was no open season in effect at the time he completed this form.

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 30 August 1996.  Having previously completed his DD Form 1883 for children-only coverage just 2 years earlier, he knew or should have known the requirements to change his desired coverage or at least to inquire about adding his spouse had he chosen to do so.

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

7.  The applicant should carefully read Army Echoes, the Army bulletin published and mailed to retirees periodically to keep them abreast of their rights and privileges and to inform them of developments in the Army.  If Congress declares another SBP Open Season it will be publicized in this bulletin.

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 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)                                         AR20100024346



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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