IN THE CASE OF:  

		BOARD DATE:  7 August 2012

		DOCKET NUMBER:  AR20120001813 


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 change his Reserve Component Survivor Benefit Plan (RCSBP) election from "children" to "spouse" only."

2.  The applicant states that the current listed beneficiary is wrong.  In a subsequent application, he states that he was not advised that if he remarried he needed to change the beneficiary to his current wife when he filed his retirement papers.

3.  The applicant provides copies of:

* Retiree Account Statement dated 5 December 2011 
* letter from the Army Review Boards Agency
* his letter to the Defense Finance and Accounting Service (DFAS)
* DD Form 2656 (Data for Payment of Retired Personnel) back page only

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Virginia Army National Guard on 24 November 1970.  He served in various assignments and attained the rank of staff sergeant/E-6. 

2.  On 28 May 1991, he completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) wherein he indicated he was not married and had dependent children.  This form also shows he elected "Children only" full coverage under option C (immediate coverage). 

3.  Orders Number 23-52, dated 4 February 1992, issued by the Commonwealth of Virginia Department of Military Affairs, discharged him from the Army National Guard and assigned him to the U.S. Army Reserve Control Group (Retired) effective 1 February 1992.

4.  Orders Number P04-943625, dated 7 April 2011, issued by the U.S. Army Human Resources Command placed him on the Retired List in the rank of SSG effective 26 March 2011.

5.  In the processing of this case, a DFAS official verified by email, dated 10 July 2012, that the applicant was married on 10 October 1991 and did not give proper notification of the marriage until 13 April 2011.  His spouse is not eligible to be added to the SBP.
 
6.  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;  (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 election at age 60.  They cannot cancel SBP participation or change options and RCSBP automatically rolls into SBP coverage. 

7.  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.

8.  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 executed a DD Form 1883 on 
28 May 1991, electing "children only" coverage under option C (immediate coverage).  He did not have a spouse at the time.  He contends he was not advised that if he remarried he had to change the beneficiary to his current wife 

2.  He married on 10 October 1991.  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.  

3.  He did not provide any evidence to substantiate his contention he was not advised of the requirement to change the beneficiary of his SBP to his current wife.  

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 10 October 1991.  Having previously completed his DD Form 1883 for children coverage just 5 months earlier, 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.  The applicant is advised that, on occasion, the U.S. Congress enacts into law 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.

6.  In view of the foregoing, he is not entitled to the 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)                                         AR2002076477



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ABCMR Record of Proceedings (cont)                                         AR20120001813



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