IN THE CASE OF:	  

		BOARD DATE:	  7 May 2013

		DOCKET NUMBER:  AR20120021995 


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 cancellation of the Reserve Components Survivor Benefit Plan (RCSBP) coverage.

2.  The applicant states he does not want to participate in the RCSBP.  When he completed the DD Form 1883 (SBP Election Certificate) on 8 August 1990, he was not married at that time.  He got married and did not update his RCSBP election within one year.  The original DD Form 2656 (Data for Payment of Retired Personnel), dated 24 August 2011, was not signed by his spouse.  In August 2011, when completing a second DD Form 2656, he was married.  At the time he did not feel like his spouse should sign since he had not updated his 1883 election within one year.  

3.  The applicant provides:

* DD Form 1883
* two DD Forms 2656
* memorandum from Retirement Point Accounting Management (RPAM) Noncommissioned Officer In Charge (NCOIC), Kentucky Army National Guard (KYARNG)
* U.S. Army Human Resources Command (HRC) Beneficial Change after RCSBP Election guide




CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he was born on xx October 1952.  He was appointed in the KYARNG on 29 June 1975.  He received a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 5 July 1990.

2.  His records contain and he provides a DD Form 1883, dated 8 August 1990.  Section II (Marital, Dependency, and Election Status) of this form shows:

	a.  He indicated he was not married and had a dependent child.  He elected "child-only" RCSBP coverage.  Item 9c shows he elected "Option B (Age 60)," based on the full amount.  Section III (Family Information), Item 15, shows he listed his son with a birth of date of xx January 1983.  The form was signed by the applicant on 6 August 1990.

	b.  The reverse side of this form states "When all children cease to be eligible for an annuity, the additional cost for child coverage shall stop.  The reduction in cost is effective the first day of the month following that in which the last child ceased to be eligible for an annuity."

3.  A DD Form 2656 shows he and his spouse were married on 29 June 1991.

4.  He was transferred to the Retired Reserve on 30 September 2008.  He was credited with completing 38 years, 3 months, and 24 days of total service for retired pay.

5.  He also provides a copy of a DD Form 2656, dated 24 August 2011.  Item 14 (Marital Status) shows he indicated he was married.  Item 22 shows he was married on 29 June 1991.  Section VIII (Dependent Children) shows he listed two sons with birth dates of xx January 1998 and xx May 2001.  This form shows in:

Section IX (SBP Election), Item 26g (Beneficiary Category), he elected not to participate in the SBP.  Section XII (SBP Spouse Concurrence) of the DD Form 2656 specifies that the spouse's concurrence is required when the member is married and does not elect full spouse coverage or declines coverage.  This block also specified that the date of the spouse's signature in Item 32b MUST NOT be before the date of the member's signature in Item 30b.  The spouse's signature MUST be notarized.  Item 32 states, "I hereby concur with the SBP election made by my spouse.  I know that retired pay stops on the day the retiree dies.  I have signed this statement of my free will."  Section XI (Certificate), Items 30 (Member) and 31a (Witness Name) contains his signature and that of the RPAM NOCIC, KYARNG.  Item 32a does not contain his spouse's notarized signature.

6.  The Soldier Management System, located on the HRC Integrated Web Services page shows that on 24 January 2012 the applicant submitted an application for retired pay benefits.  The process was completed on 14 March 2012.

7.  He reached age 60 on xx October 2012 and he was placed on the Retired List on 1 November 2012.

8.  He also provides a copy of a DD Form 2656, dated 16 November 2012.  Item 14 shows he indicated he was married.  Section VIII shows he listed two sons with birth dates of xx January 1998 and xx May 2001.  This form shows in:

Section IX, Item 26g, he elected not to participate in the SBP.  Section XII of the DD Form 2656 specifies that the spouse's concurrence is required with the member is married and does not elect full spouse coverage or declines coverage.  This block also specified that the date of the spouse's signature in Item 32b MUST NOT be before the date of the member's signature in Item 30b.  The spouse's signature MUST be notarized.  Item 32 states, "I hereby concur with the SBP election made by my spouse.  I know that retired pay stops on the day the retiree dies.  I have signed this statement of my free will."  Section XI, Items 30 and 31a contains his signature and that of the RPAM NOCIC, KYARNG.  Item 32a contains his spouse's signature that was notarized on 16 November 2012.

9.  He further provides a copy of a memorandum from the RPAM NCOIC, KYARNG, dated 16 November 2012.  The KYARNG official states:

   a.  At the time of the applicant's election, dated 8 August 1990, he was not married.  On 6 June 1991, the applicant was married to his current spouse.  The applicant did not update his election to married status within the one year period to HRC.  

   b.  It was her understanding if the applicant did not update his election within the one year period, the election would become null and void.  If that is not the case, then it is her fault that she did not inform the applicant to have his spouse sign the 24 August 2011 DD Form 2656.  She apologizes for not fully understanding this policy.  She has been doing this for 4 years and this is the first time that has happened.  

10.  He also provides a copy of an HRC Beneficial Change after RCSBP Election guide that states the time limits to change RCSBP elections are within 1 year to enroll a newly-gained spouse or child.  

11.  There is no evidence the applicant contacted the Defense Finance and Accounting Service (DFAS), with his spouse’s written concurrence, to terminate SBP participation by the date of his 60th birthday.

12.  On 3 May 2013, DFAS informed the Board staff that the applicant was automatically enrolled in the SBP because his DD Form 2656 did not include spousal concurrence.

13.  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. Elections are made by category, not by name, and are irrevocable except as provided for by law.

14.  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: 

* 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;
* elect that a beneficiary receive an annuity immediately upon their death if before age 60

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.  The RCSBP rolls over into an SBP 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.

15.  Title 10, U. S. Code, section 1452(b)(3) states, in the case of an RCSBP participant who provided child-only coverage during a period before the participant becomes entitled to receive retired pay, the retired pay of the participant shall be reduced by an amount prescribed to reflect the coverage provided during the period before the participant became eligible for retired pay and is made without regard to whether there is an eligible dependent child during a month for which the reduction is made.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a member of the Reserve Component, was issued a 20-year letter in July 1990.  Upon receipt of this letter, on 8 August 1990, he executed a DD Form 1883 wherein he indicated he was not married, had a 7-year old dependent son, and elected full "child only" SBP coverage under Option B   (defer) - payment of any annuity to begin on his 60th birthday or on the day after the date of death should he die on or after his 60th birthday.  

2.  The applicant was married on 6 June 1991.  By law, he had one year from the date of marriage to add his spouse to his coverage.  He did not do so.  As such, his coverage remained child only coverage and his only opportunity to add his spouse was via an Open Season enrollment.  Again, he did not do so.  

3.  He could not add his spouse to his SBP when he reached retirement age nor could he decline the coverage he originally elected (child only).  By law, he was not authorized to make any election of any sort at age 60.  It appears DFAS never received his DD Form 1883 and therefore erroneously enrolled him in the standard SBP for spouse coverage.

4.  However, the applicant's record should be corrected to show his SBP coverage is for child-only coverage.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  __X_____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant's DD Form 1883 was timely received and processed by DFAS for child-only coverage. 
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to cancellation of his RCSBP coverage. 



      _______ _ 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)                                         AR20120021995



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ABCMR Record of Proceedings (cont)                                         AR20120021995



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