IN THE CASE OF:	  

		BOARD DATE:	  1 December 2011

		DOCKET NUMBER:  AR20110012014 


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

2.  The applicant states he completed a DD Form 1883 (SBP Election Certificate) in November 1990.  He was not married at the time.  He elected children coverage.  He married his spouse in April 1993.  He contacted his unit personnel within a few days and provided his personnel office with his marriage license and the SBP certificate to effect the change in coverage from "children” to "spouse" coverage.  He was discharged in December 2006 and he applied for retired pay at age 60.  He learned that his election did not change in 1993 as he thought.  He believes this is erroneous and it should be corrected. 

3.  The applicant provides:

* DD Form 1883
* Marriage license
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* NGB Form 23B (Army National Guard (ARNG) Retirement Points History Statement)
* DD Form 109 (Application for Retired Pay Benefits)
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)



CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 12 June 1951.

2.  Having had prior enlisted service, he enlisted in the ARNG on 23 April 1970.  He served in a variety of assignments and attained the rank of sergeant first class (SFC)/E-7.

3.  On 5 June 1990, the ARNG 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 2 November 1990, he completed a DD Form 1883.  He indicated he was not married but he had dependent children.  He listed his children (AGF, born on 16 March 1971 and AJF, born on 23 November 1974).  He elected "children only" coverage, full amount, option C (immediate coverage), under the Reserve Component SBP (RCSBP).

5.  On 20 March 1993, he married his current spouse, MAB.  However, there is no indication he notified officials at the Defense Finance and Accounting Service (DFAS) of his marriage or that he requested a change of RCSBP coverage from children to spouse within 1 year of marriage.

6.  On 31 December 2006, he was honorably discharged from the ARNG and transferred to the Retired Reserve.

7.  On 29 March 2011, the U.S. Army Human Resources Command, St. Louis, MO, published official orders placing him on the Retired List effective 12 June 2011, his 60th birthday.

8.  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.

9.  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

10.  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.

11.  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.

12.  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.

13.  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 2 November 1990, electing "children only" coverage under option C (immediate coverage).  He did not have a spouse at the time.  He married 3 years later on 19 March 1993.  Although he alleges that he notified his unit within days and tried to add his spouse to the SBP, he provides no independent evidence to support this claim.  

2.  The law permitted him to add his spouse within 1 year of their marriage; however, he did not do so.  In the absence of evidence showing he added his spouse within 1 year of their marriage he irrevocably forfeited future spouse coverage except during a Congressionally-approved open enrollment period. 

3.  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 19 March 1993.  Unfortunately, the applicant has failed to provide any independent evidence showing he did, indeed, attempt to enroll his spouse through his unit in a timely fashion.

4.  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)                                         AR20110012014



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ABCMR Record of Proceedings (cont)                                         AR20110012014



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