BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110011249 


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 change of his Survivor Benefit Plan (SBP) coverage from "children" to "spouse" coverage. 

2.  The applicant states he ended his service in October 1992 after completing
23 years of active and reserve service.  He was not married at the time and he chose to have his children as the beneficiaries of his SBP annuity.  He married on 9 September 1995 but he was unaware that he had to submit a change in election within 1 year of his marriage.

3.  The applicant provides:

* his Certificate of Marriage
* a DD Form 2656-6 (SBP Election Change Certificate), dated 2 January 2010
* a DD Form 2656 (Data for Payment of Retired Personnel), dated
4 January 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 28 December 1950.

2.  Having had prior enlisted service, he was appointed as a second lieutenant in the Wisconsin Army National Guard (WIARNG) and he executed a National 

Guard Bureau (NGB) Form 337 (Oaths of Office) on 21 January 1975.  He served in a variety of assignments and he attained the rank of major (MAJ).

3.  On 24 March 1992, the U.S. Army Reserve Personnel Center, St. Louis, MO, issued him a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60, commonly known as the 20-year letter.  This letter notified him he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

4.  On 21 July 1992, he completed a DD Form 1883 (SBP Election Form).  He indicated he was not married but he had dependent children.  He listed his children (NRS, born on 28 July 1975; JMS, born on 11 January 1978; and DJS, born on 18 December 1980).  He elected "children only" coverage, full amount, option C (immediate coverage), under the Reserve Component SBP (RCSBP).

5.  On 27 October 1994, he was honorably discharged and he was transferred to the Retired Reserve.

6.  On 9 September 1995, he married his current spouse, JJS.  However, there is no indication he notified the appropriate officials of his marriage or that he requested a change of RCSBP coverage from children to spouse within 1 year of his marriage.

7.  On 4 January 2010, he applied for retired pay at age 60. 

8.  He provides:

	a.  a DD Form 2656-6, dated 2 January 2010, wherein he indicated he was changing his election from "children" to "spouse" coverage based on his marriage.

	b.  a DD Form 2656, dated 4 January 2010, wherein he indicated he was married to JJS and he elected spouse SBP coverage based on the full amount.

9.  His record also shows he was placed on the Retired List in his retired rank of MAJ on 28 December 2010, his 60th birthday.

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 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:

* elect to decline enrollment and choose at age 60 whether to start SBP participation
* 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
* 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.  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, issued several times a year to retirees and gray-area retirees to keep them abreast of items of interest to retirees.

15.  The National Defense Authorization Act for Fiscal Year 2005 established an Open Season for enrollment to be conducted from 1 October 2005 through 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.  Extensive publicity was given in Army Echoes.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows upon receipt of his 20-year letter, the applicant executed a DD Form 1883 on 21 July 1992, electing "children only" coverage under option C (immediate coverage).  He did not have a spouse at the time.

2.  He married some 3 years later on 9 September 1995.  The law permitted him to add his spouse within 1 year of their marriage; however, 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 Open Seasons to be conducted from 1 March 1999 through 29 February 2000 and from 1 October 2005 through 30 September 2006, thus allowing the applicant two opportunities to enroll his spouse in the SBP.

3.  He completed a DD Form 2656-6 on 2 January 2010; however, this form could not be processed since it was not received within 1 year of his marriage. He also completed a DD Form 2656 on 4 January 2010.  However, again there was no open season in effect at the time he completed this form.

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 applicant and his spouse were married on 9 September 1995.  Having previously completed his DD Form 1883 for children coverage just 3 years earlier and having been afforded the opportunity to enroll his spouse during an Open Season, the applicant 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 foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110011249



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110011249



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1