BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110011701 


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 correction of his records to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) with spouse (immediate) coverage.

2.  The applicant states he completed 20 years of qualifying service in February 1991.  He was divorced in April 1991 and shortly thereafter he changed his SBP election to children only (immediate) coverage. At the time he had two dependent children.

	a.  He remarried in January 1992.  He was not advised of or aware of the requirement to make a change in his SBP election within 1 year of being married.  He adds that when he retired in 1998, he did not receive any retirement briefings or guidance concerning SBP elections or the impact of those decisions.

	b.  He completed his application for retired pay in March 2010.  He was asked about his SBP election at that time and he elected spouse coverage.  He turned age 60 in December and received his first Retiree Account Statement in January 2011.  At that time, he discovered the SBP election he submitted for spouse coverage was not honored.

	c.  He contacted the Retirement Services Office (RSO) at Fort Sill, Oklahoma, and inquired into the matter.  The RSO confirmed the applicant elected children only SBP coverage in 1991, he did not change his SBP coverage within 1 year of marriage, there was nothing the RSO could do.  The RSO advised him that he could wait for an SBP open season or contact the Army Board for Correction of Military Records concerning the matter.

	d.  He asserts he was provided very poor information by personnel officials at the time he made his SBP decisions and he wants to provide SBP coverage for his wife.  He adds that he is available to appear before the Board, if necessary.

3.  The applicant provides a copy of his SBP election, marriage license, application for retired pay, and retiree account statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard (ARNG) on 1 February 1971. 

2.  He was appointed as a Reserve commissioned officer in the rank of second lieutenant in the ARNG on 5 May 1980.

3.  He was promoted to lieutenant colonel (LTC) in the Engineer Corps on
20 October 1994.

4.  His records do not contain a copy of a Notification of Eligibility for Retired Pay at Age 60.

5.  Oklahoma Army and Air National Guard, Oklahoma City, Oklahoma, Orders 011-002, dated 15 January 1998, honorably separated the applicant from the ARNG, effective 1 February 1998, and transferred him to the U.S. Army Reserve Control Group (Retired Reserve).  At the time the applicant was serving in a technician status at Headquarters, State Area Command, Oklahoma ARNG.

6.  U.S. Army Human Resources Command (USA HRC), St. Louis, Missouri, Orders P11-930182, dated 18 November 2010, retired the applicant and placed him on the Retired List in the rank of LTC (O-5), effective 27 December 2010.

7.  In support of his request, the applicant provides the following documents:

	a.  A DD Form 1883 (SBP Election Certificate) completed by the applicant on 6 May 1991, that shows he indicated he was not married, he had two dependent children (born in February 1977 and November 1980), and elected to participate in the RCSBP with children only, option C (immediate) coverage, full base amount.

	b.  State of Oklahoma, Marriage License, that shows the applicant married Lxxxx Cxxxxxxx M---- on 2 January 1991.  However, the applicant notes the date of marriage was 2 January 1992 and the amendment of the certificate has been requested.

   c.  DD Form 2656 (Data for Payment of Retired Personnel) completed by the applicant for the purpose of applying for retired pay.  He indicated that he married Lxxxx C. [M----] on 2 January 1992; he had no dependent children; and he elected to participate in the SBP with spouse only coverage, full base amount.  The applicant and a witness signed this form on 11 March 2010.

   d.  Retiree Account Statement (page 1 only), effective 27 December 2010, shows his Federal tax withholding status as "married."  The section for SBP Coverage shows child(ren) only coverage, full base amount.  The child's date of birth is shown as November 1980 and that premiums are being deducted.

8.  There is no evidence in the applicant's military personnel records that shows he took any action to notify the USA HRC or Defense Finance and Accounting Service (DFAS) requesting a change to the category of his SBP election to spouse coverage within 1 year of his marriage, as is required by law.

9.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provides 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; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60, or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  An election, once made, is irrevocable except under certain circumstances provided for by law.

10.  Pursuant to Title 10, U.S. Code, section 1448(a)(5), a retired member who marries after retirement and who, at the time of marriage, has no dependent children and has not previously elected for spouse coverage may, within 
1 year of the marriage, elect to cover his spouse under the SBP.

11.  On occasion, the U.S. Congress has established an SBP Open Season for members not participating to the fullest possible extent.

	a.  Public Law 105-261, enacted 18 October 1998, established an Open Season to be conducted from 1 March 1999 through 29 February 2000.

	b.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted from 1 October 2005 through 30 September 2006.  

	c.  Extensive publicity was given to these SBP Open Seasons in Department of Defense websites, 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), other Army publications, and by military veteran organizations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he elected to participate in the RCSBP with spouse (immediate) coverage because he was never made aware of the fact that he had to enroll his spouse in the RCSBP within 1 year after their marriage in order for her to be covered by the RCSBP.

2.  The applicant's contention was carefully considered.

	a.  The applicant was a field grade commissioned officer during the period of service in question and that is now under review.

	b.  Records show that on 6 May 1991 he elected SBP Option "C" with children only coverage.

	c.  In his letter to the Board, the applicant indicates that he completed an SBP election after completing 20 qualifying years of service in February 1991.  He states he divorced in April 1991 and that he changed his SBP election to child only coverage in May 1991.  However, it appears the May 1991 election was, in fact, his original election rather than a change.  He divorced prior to the close of his 90 day election period and he indicated in block 18 that it was his only election under SBP.

3.  There is no evidence of record to show the applicant took the necessary action to notify USA HRC or DFAS officials to change the category of his RCSBP coverage from child to spouse coverage within 1 year of his marriage (i.e., on
2 January 1992), as is required by law.  In addition, there is no evidence the applicant submitted an application for spouse coverage during the SBP open seasons conducted from 1 March 1999 through 29 February 2000 or from
1 October 2005 through 30 September 2006.  

4.  The evidence of record shows the first time the applicant requested a change to his RCSBP election to spouse coverage was when he applied for retired pay on 11 March 2010.

5.  By law, the applicant had 1 year from the date of his marriage to add spouse coverage.  There is no evidence he attempted to do so.  Thus, in view of the foregoing, there is no basis for correcting the applicant's military service records in this case.

6.  The applicant is advised that the only opportunity to enroll for spouse coverage will come, if and when, Congress declares a new SBP Open Season.

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)                                         AR20110011701



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ABCMR Record of Proceedings (cont)                                         AR20110011701



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