BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110023506 


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 that his records be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) with spouse coverage.

2.  The applicant states he completed a DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) in June 1997 and elected children only coverage.  At the time, he was unmarried.  He later married, on 6 October 2007.

	a.  In 2011, prior to attaining age 60, the applicant applied for retired pay and listed his spouse as his beneficiary.

	b.  Upon receipt of his first retired pay statement, he realized there was an error in his SBP coverage and he requested a change in his beneficiary. 

3.  The applicant provides a copy of his SBP election certificate, marriage certificate, and a DD Form 2656-3 (SBP and RCSBP Open Enrollment Election).

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 23 October 1951.  He had prior enlisted active duty and reserve service in the U.S. Army from 25 April 1969 to 16 December 1976.

2.  The applicant was appointed as a commissioned officer in the Regular Army on 17 December 1976.  He transferred to the U.S. Army Reserve (USAR) on
2 September 1988.

3.  The applicant was promoted to lieutenant colonel (LTC)/pay grade O-5 on
21 October 1995.

4.  A review of the applicant's military personnel records failed to reveal a letter notifying him of eligibility for retired pay at age 60.

5.  On 24 June 1997, the applicant completed a DD Form 1883.  He indicated that he was not married, that he had two dependent children at that time, and he elected to participate in the RCSBP with children only, option C (immediate) coverage, full base amount.

6.  Headquarters, 75th Division (Training Support), Houston, Texas,
Orders 02-023-006, dated 23 January 2002, voluntarily reassigned the applicant to the USAR (Retired Reserve), effective 30 April 2002.

7.  U.S. Army Human Resources Command, St. Louis, MO, Orders P08-949571, dated 3 August 2011, placed the applicant on the retired list, in the grade of LTC (O-5), effective 23 October 2011.

8.  In support of his application the  applicant provides the following documents:

	a.  State of Tennessee, Davidson County, Marriage Certificate, that shows he married Pamela Rose R---- on 6 October 2007.

	b.  An SBP and RCSBP Open Enrollment Election that shows the applicant married Pamela R. R----, on 6 October 2007; that he had no dependent children; and he elected to participate in the SBP with spouse only coverage, based on full gross retired pay, with the full enrollment premium amount deducted from his retired pay in 24 monthly installments.  The applicant, his spouse, and a witness signed the form on 27 November 2011.

9.  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.

10.  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; and (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.  

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 one year after the date on which that person marries or acquires that dependent child.

12.  The Defense Finance and Accounting Service interprets the first part of Title 10, U. S. Code, section 1448(a)(5) to mean, “…who is not married OR has no dependent child….”

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant initially elected to participate in the RCSBP with children only coverage, option C (immediate), full base amount.  At the time, he was not married.

2.  The applicant married on 6 October 2007; however, there is no evidence that he elected RCSBP spouse coverage within 1 year of the marriage date.

3.  The applicant was placed on the retired list on 23 October 2011.  He now requests spouse only coverage, based on full gross retired pay.

4.  The governing law is clear in that a person who is not married, but who later marries, 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.  The applicant failed to make such an election within 1 year after the date on which he was married.

5.  Regrettably, in view of all of the foregoing, the applicant is not entitled to correction of his records to show he enrolled in the RCSBP (or SBP) with spouse only coverage.

6.  The applicant is advised that, on occasion, the U.S. Congress enacts into legislation an SBP Open Season.  For example, 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 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  It required the retiree to pay monthly premiums starting on the date of enrollment and a buy-in premium covering all costs that would have been paid for the election if it had been made at the first opportunity to do so.  The applicant is encouraged to monitor military media and/or websites in the event an SBP Open Season is enacted into law in the future and he still wishes SBP spouse coverage.

7.  The applicant is also advised that he may wish to contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding the SBP.  A listing of RSOs by country, state, and installation is available on the Internet at:  http://www.armyg1.army.mil/RSO/rso.asp.

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)                                         AR20110023506



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ABCMR Record of Proceedings (cont)                                         AR20110023506



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