IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120021011 


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, in effect, correction to his records to show he changed his Reserve Component Survivor Benefit Plan (RCSBP) coverage from "child only" to his current spouse within 1 year of marriage.

2.  The applicant states he has remarried and wants to change his election from his son who is 35 years of age to his current spouse.  He was not advised of the need to make a change to his SBP election until October 2012.  He believes he should have been notified concerning adding his current spouse in 2003 when she was added to his retired paperwork.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 27 March 1972 and served continuously through a series of reenlistments or extensions.  He entered active duty on 9 July 1989.  

2.  The Defense Finance and Accounting System (DFAS) provided a copy of a DD Form 1883 (SBP Election Certificate), dated 28 December 1994, which shows in Section II (Marital/Dependency Status) the applicant indicated he was married and had dependent children and elected SBP coverage for "children only," Option C (Immediate Coverage).  In Section III (Family Information) he entered "none" as his spouse's name.  In this section he listed a son with a date of birth (DOB) of xx June 1973, a daughter with a DOB of xx October 1974, and a son with a DOB of xx November 1978.  He also annotated that this was the only election of coverage he had submitted under the new SBP.  He signed the form and his signature was witnessed as required on the same date.

3.  He was discharged from active duty on 22 May 1998.   

4.  DFAS also provided a copy of a DD Form 2656, dated 28 July 2011, wherein the applicant listed his status as "married" with no dependent children.  In Section XI (SBP Election) he elected "spouse only" full coverage.  Section XI (Certification) contains no entries.  Section XII (SBP Spouse Concurrence) contains the applicant signature which was witnessed on 28 July 2011.  In Item 28 (Insurable Interest Beneficiary) he listed his current spouse.

5.  He was placed on Retired List on 21 September 2012.

6.  On 17 June 2013, a staff member of DFAS verified that on 28 December 1994 the applicant made an immediate election for "child only."  His eldest child's eighteenth birthday was xx November 1999.  Once his eldest child became 18 years of age he was no longer the annuitant and the coverage was therefore placed into a suspended status.  When the applicant married his current spouse on 27 July 2003, he had until his 1 year anniversary (26 July 2004) to add the current spouse as the annuitant using a DD Form 2656-6 and he opted not to do so.  

7.  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: 

* Option A - elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C - elect that a beneficiary receive an annuity immediately upon their death if before age 60

8.  Once a member elects either option B or option 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.  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.

9.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and/or has no dependent child upon becoming eligible to participate in the SBP/RCSBP, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 28 December 1994 the applicant elected RCSBP coverage for "children only."  Although he checked the box indicating he was married, he entered "none" as his spouse's name.  His marital status at the time is unclear.  He was discharged on 22 May 1998.  On 28 November 1999, his eldest child was no longer eligible for coverage and the applicant's account was placed in a suspended status.  DFAS verified he remarried on 26 July 2003. He retired on 21 September 2012.  

2.  If he was married at the time of his 1994 election, he is not authorized to add his new spouse except during an Open Season.  If he was not married, he had 1 year from the date of his 2003 marriage to add his newly acquired spouse, or he could wait for an Open Season.  

3.  He completed a DD Form 2656 in July 2011; however, this form could not be processed since it was not received within 1 year of his marriage and there was no Open Season in effect at the time he completed this form.

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, having previously completed his DD Form 1883 for children coverage, the applicant knew or should have known of the requirements to change his desired coverage or at least to inquire about adding his spouse in a timely manner had he decided to do so. 

5.  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)                                         AR20120021011



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ABCMR Record of Proceedings (cont)                                         AR20120021011



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