IN THE CASE OF:	  

		BOARD DATE:	    31 January 2012

		DOCKET NUMBER:  AR20110013299 


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 to his Survivor Benefit Plan (SBP) coverage to allow coverage for his spouse.  

2.  The applicant states he was divorced in 1986, prior to making his SBP coverage election in conjunction with receiving his notification of eligibility for retired pay at age 60 (20 year letter).  At the time he received his 20 year letter, he was not married and completed a SBP election of Children Only under Option C (Immediate Coverage).  He states his children are no longer eligible.  He remarried on 3 March 1999, and requested to cover his spouse when he submitted his retirement packet in October 2006, and again in a retirement packet submitted in November 2006.  He did not retire at age 60 and instead continued to serve through age 62.  He submitted another retirement packet in November 2010 and completed a SBP election for Spouse coverage.  He states that according to SBP guidance he should have been allowed to change his election at age 60 when he submitted his retirement packet.  

3.  The applicant provides the following documents in support of his application:

* Marriage Certificate
* 20 Year Letter
* DD Form 1883 (SBP Election
* DD Forms 108 (Application for Retired Pay), dated 12 September 2008 and 29 November 2010


* Handbook for Retirement Services (NGB Pamphlet 600-5)
* DD Forms 93 (Records of Emergency Data)
* Retention Beyond 60 Memorandum, dated 24 June 2008
* Retired List Orders, dated 3 March 2011
* Retiree Account Statement (RAS), dated 1 July 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows on 21 December 1987, a New York Army National Guard Memorandum notified the applicant that he had completed the required years of service and was eligible to receive retired pay at age 60.  In connection with this notification, on 18 January 1988, the applicant completed a DD Form 1883 (SBP Election Certificate) in which he confirmed he was not married and elected “Children Only” coverage under Option C.  

2.  On 3 March 1999, the applicant married his current spouse.  

3.  On 3 March 2011, United States Army Human Resources Command, 
St. Louis (HRC-St. Louis) published Orders PO3-941893.  These orders directed the applicant's retirement and placement on the Retired List in the retired grade of chief warrant officer five (CW5), effective 12 March 2010.

4.  The applicant’s Retiree Account Statement shows SBP coverage of “Children Only.”  

5.  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 an annuity after death to surviving dependents.  

6.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married or 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 to cover such individuals.  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. 

7.  Public Law 95-397, the Reserve Component Survivor Benefit Plan (RCSBP), enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.  



8.  The following three options are available under the RCSBP:

	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.

9.  Under the RCSBP law, If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay (costs for option C being the more expensive).  Once a member elects either Options 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 should the member have died prior to age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to add his current spouse to his SBP coverage has been carefully considered.  Although the applicant failed to file for RCSBP coverage for his spouse within one year of their marriage, there are equity considerations in this case that support relief.

2.  The evidence of record clearly shows the applicant requested to change his SBP election upon application for retirement which he believed was the appropriate action.  

3.  Given the applicant added his current spouse to his record upon marriage and it appears it was always his intent to provide SBP coverage for her, it would be appropriate and serve the interest of equity to correct the applicant's record to show he filed to change his SBP election to add his spouse on the date of his marriage, 3 March 1999, and that this request was approved.  The applicant's DFAS record should be corrected accordingly and all premium costs associated with the election change will be borne by the applicant.


BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his request for a change to his RCSBP election to add spouse coverage was submitted and approved within the 1-year time frame required.  All premium costs associated with this election and coverage change will be collected from the applicant's retired pay.



      ____________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)                                         AR20110013299



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ABCMR Record of Proceedings (cont)                                         AR20110013299



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