IN THE CASE OF:	

		BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130005016 


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, the brother of a deceased former service member (FSM), requests correction of his brother's record to show he elected to participate in the Survivor Benefit Plan (SBP) for child coverage for his daughter.

2.  The applicant states, in effect, that the FSM elected to defer enrollment in the SBP by selecting Option "A" on his DD Form 1883 (SBP Election Certificate), dated 15 August 1992.  The FSM subsequently fathered a daughter who was born on 30 January 2001.  When the FSM died on 28 October 2005, he was in the process of changing his SBP election.  The applicant believes the FSM's DD Form 1883 should be amended to show he elected immediate coverage by selecting Option "C" and that his only heir (his daughter) should be added as the sole beneficiary of his retirement benefits.

3.  The applicant provides:

* a timeline of events related to the FSM's SBP election
* the FSM's 20-Year Letter
* 3 death certificates for the FSM and each of his parents
* the FSM's daughter's birth certificate
* Court-issued paternity documents for the FSM's daughter
* the FSM's daughter's Social Security card
* a DD Form 2656-6 (SBP Election Change Certificate)
* contact information for the FSM's daughter's mother 
* the FSM's family tree
* Certificate of Appointment of Fiduciary
* An extract from the FSM's Last Will and Testament

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 7 September 1946.  He served as an enlisted Soldier in the U.S. Army Reserve (USAR) from 10 January 1966 through 9 January 1972 and again from 30 October 1977 through 5 May 1995.  He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of first sergeant (1SG)/E-8.

2.  On 11 May 1992, while serving in the rank of 1SG, the USAR Personnel Center issued the FSM a 20-year letter.  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  This letter also advised the FSM that by law he was required to submit a DD Form 1883 in a timely manner or he would be prohibited from doing so until he applied for retired pay at age 60.

3.  On 15 August 1992, the FSM completed a DD Form 1883.  In Section II (Marital, Dependency, and Election Status) of this form he indicated he was not married, he had no dependent children, and he did not desire any type of RCSBP coverage at the time.  Item 9c of this form shows that he elected to defer RCSBP enrollment by selecting Option "A."  The FSM authenticated this document with his signature in the appropriate block.

4.  The FSM's daughter was born on 30 January 2001.  

5.  The FSM died on 28 October 2005 at the age of 59 years, 1 month and 22 days.  His Certificate of Death shows the applicant as the informant of the FSM's death.

6.  The FSM's record is void of any documentation showing he initiated a change to his SBP coverage within 1 year after the date of his daughter's birth or at any time prior to his death. 

7.  The applicant provides a DD Form 2656-6 rendered by himself on behalf of the FSM on 15 January 2013.  This form indicates a desire to change the FSM's SBP election from "No coverage" to "Child(ren) only" coverage based upon acquiring a dependent child.  The applicant's daughter is shown as the dependent child.

8.  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.
9.  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 1 year after the date on which that person marries or acquires that dependent child.  

10.  Public Law 95-397, enacted 30 September 1978, provided a way for RC 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 RCSBP 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

11.  Every issue of Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army, contains the information, "Remember:  You are responsible for updating your retired pay file information at DFAS-CL…within one year of the event if you marry, remarry…acquire a dependent child...and need to make or update a Survivor Benefit Plan (SBP) election."

12.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  Extensive publicity was given in Army Echoes.  

DISCUSSION AND CONCLUSIONS:

1.  The FSM had no dependent when he elected not to participate in the RCSBP on 15 August 1992.

2.  The FSM's daughter was born on 30 January 2001 and he had 1 year from her date of birth to enroll in the RCSBP for child coverage, but there is no evidence to show he enrolled within the given time frame.  

3.  He also had the opportunity to enroll in the RCSBP during an Open Season, but there is no evidence to show that he enrolled or attempted to enroll.

4.  The FSM died on 28 October 2005, prior to reaching age 60 which, having deferred his election, would have been his next opportunity to enroll in the SBP.  Accordingly, there is no basis for granting the applicant's request.  

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)                                         AR20130005016





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ABCMR Record of Proceedings (cont)                                         AR20130005016



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