IN THE CASE OF:	  

		BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110011191 


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, in effect, that his records be corrected to show he requested spouse Reserve Component Survivor Benefit Plan (RCSBP) coverage in a timely manner.

2.  The applicant states he doesn't believe he was adequately informed that he had 1 year to change his beneficiary after marriage.  He adds that he is denied the right to amend a very important document.
   
   a.  He states, in effect, that he completed his DD Form 1883 (Survivor Benefit Plan Election Certificate) in 1994 and elected child only coverage because he was not married at the time.  He married on 8 May 2004.  He states he submitted a DD Form 2656 (Data for Payment of Retired Personnel) in 2009 in conjunction with his retirement application electing spouse coverage.

	b.  He states his initial Retiree Account Statement, dated 21 May 2010, showed children only SBP coverage and his wife as arrears of pay beneficiary.  He states after inquiring he received a letter on 21 June 2010 stating he had to change his election within 1 year of his May 2004 marriage.  He states he doesn't know how he was notified of this requirement and doesn't see it on any of the documents.

	c.  He states he then submitted another SBP election on a DD Form 2656-5 (RCSBP Election Certificate) in January 2011 hoping the designation of his wife as his beneficiary would be made.  However, it was not changed.  He states he believes it to be unjust that he has been unable to designate his wife as beneficiary of his SBP.  He adds that notification of the 1 year rule is deficient and the lack of recourse to an SBP election made in 1994 is unreasonable.  He states that such a policy is contrary to the spirit of the SBP and an affront to the Soldier's desire in selection of a beneficiary. 

3.  The applicant provides a:

* DD Form 1883, completed in 1994
* DD Form 2656
* Defense Finance and Accounting Service (DFAS) letter
* DD Form 2656-5 
* May 2010 Retiree Account Statement 
* 2004 Certified Transcript of Marriage 

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 10 May 1950.  His records show with prior enlisted Reserve Component service he was appointed as a Reserve commissioned officer in April 1982.

2.  His notification of eligibility for retired pay (20-year letter) was prepared on 9 April 1993.  

3.  He provided a DD Form 1883, dated 1 May 1994, which shows on that date he was not married and he elected to participate in the RCSBP for children only coverage, full base amount, option C (Immediate Annuity).  This form shows his dependent children were born in August 1977 and March 1980.

4.  He was transferred from the U.S. Army Reserve Control Group (Reinforcement) to the Retired Reserve effective 1 May 1999 after completing 20 or more years of Reserve duty. 

5.  He married on 8 May 2004.

6.  On 4 March 2009, he applied for retired pay by completing a DD Form 2656.  On this form he elected spouse only SBP coverage based on full base amount.

7.  He was placed on the Retired List on 10 May 2010.

8.  He provided a letter from DFAS, dated 24 June 2010, indicating DFAS was unable to add his spouse to his RCSBP because he had not requested the change to his previous children only election within 1 year of his marriage on 8 May 2004.  The letter further indicated he would not be able to make an election for his spouse until the next SBP Open Season.  A date for an Open Season was unavailable since Open Seasons are enacted by Congress. 

9.  He provided a DD Form 2656-5; dated 11 January 2011, showing an RCSBP election of spouse only, full coverage, option C.  This form does not indicate he has any dependent children.

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. 

11.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  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 - 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 had the member died prior to age 60.

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 one year after the date on which that person marries or acquires that dependent child.  (The Defense Finance and Accounting Service (DFAS) interprets the phrasing of the first sentence of this section to read, “…is not married or has no dependent child.…”).

13.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must have paid 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.  Extensive publicity was given in 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not married when he completed his DD Form 1883 in May 1994 and elected to participate in the RCSBP for child only coverage.

2.  By law, he could have enrolled in SBP for spouse coverage within 1 year of his marriage on 8 May 2004.

3.  In addition, he could have enrolled in the SBP during the October 2005 through September 2006 Open Season.

4.  Evidence indicates he first attempted to request a change to his SBP election in conjunction with his application for retired pay, dated 4 March 2009, nearly 4 years beyond the latest date he was eligible to do so by law.  A DFAS letter, dated June 2010, indicated DFAS did not accept his request for this change due to it being past the date permitted by law.

5.  It is acknowledged that he stated he was not aware of the 1-year rule. However, the applicant was aware that the SBP was out there for the benefit of his family.  A reasonable person would have inquired (by contacting DFAS or the U.S. Army Human Resources Command or an installation Retirement Services Officer) into the possibility of providing the SBP for his newly-acquired spouse in a more timely manner.

6.  Regrettably, there is insufficient evidence that would warrant granting the relief requested.

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)                                         AR20110011191



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ABCMR Record of Proceedings (cont)                                         AR20110011191



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