IN THE CASE OF:	  

		BOARD DATE:  6 February 2014

		DOCKET NUMBER:  AR20130007471 


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, widower of a deceased former service member (FSM), requests reconsideration of his earlier request for correction of the FSM's records to show she added him as a Survivor Benefit Plan (SBP) beneficiary within 
1 year of their marriage.

2.  The applicant states:

* on 15 August 2003, he and the FSM traveled to the Wisconsin National Guard (WIARNG) to update her records and change her marital status
* he received an identification card at the time
* he questions whether or not it was part of the Military Affairs personnel responsibility to review and make sure all records were updated and correct
* the FSM's DD Form 1883 (SBP Election Certificate) would have been updated well within the 1-year time limit had the records been updated and corrected

3.  The applicant provides:

* 2 pages of self-authored statements
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings, Docket Number AR20120004626, dated 13 November 2012


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120004626, on 13 November 2012.

2.  The applicant has submitted a new argument which was not previously considered by the Board.  It appears the applicant's submission has pages missing; however, the new argument warrants consideration at this time.

3.  The FSM served in an active status in the WIARNG from 8 January 1976 through 7 January 1997, at which time she transferred to the Retired Reserve. The FSM was born on 10 July 1952.

4.  On 8 February 1996, the FSM completed a DD Form 1883.  She indicated she was not married but she had three children.  She elected children only, full and immediate coverage, Option C, Reserve Component SBP (RCSBP).  The three children were aged 11, 14, and 16.  The form notes this decision is a permanent and irrevocable election.

5.  On 21 June 2003, the applicant and FSM married.  The FSM appears to have completed all required documentation under the Defense Enrollment Eligibility Reporting System (DEERS) to have her spouse properly recognized and, with the exception of the SBP issue, these actions were completed in a timely manner.  At this time one of her children was still age eligible for receipt of SBP.

6.  There is no indication the FSM made a change in her RCSBP/SBP election during the 1 October 2005 through 30 September 2006 Open Season.

7.  In March 2011, the FSM started the processing for receipt of retired pay at age 60.  Her DD Form 2656 (Data for Payment of Retired Personnel) includes an SBP election option of spouse only.  At this point none of her children were eligible SBP beneficiaries.

8.  On 25 November 2011, the FSM passed away.

9.  Although the documentation is not of record, the applicant appears to have requested receipt of SBP and was denied entitlement due to the fact the proper forms were not submitted within 1 year of their marriage.



10.  Public Law 95-397, 1978, provided RCSBP as 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. 

11.  Title 10, U.S. Code, section 1448, provides the law for participation in and changes to SBP and RCSBP options and beneficiaries.  It provides guidance for adding a spouse for a person who is not married at the time he/she becomes eligible to participate in and later marries.  In order to qualify a service member must submit the request within 1 year of marriage.

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 elected RCSBP, Option C at the time of her transfer to the Retired Reserve and her children were covered until they reached their majority.  Under this option, she would have been able to add her spouse at the time of marriage.  However, the law specifically states that such a request must be made within 1 year of the marriage.

2.  Although records show the FSM completed the DEERS submission and other forms to recognize the applicant as her spouse and she may have desired to cover him under the SBP, there is no evidence showing she submitted an election in a timely manner to add her spouse as beneficiary on her RCSBP/SBP.  Additionally, there is no indication the FSM elected to participate in the 2005 Open Season.

3.  Although the applicant questions whether or not it was the responsibility of Military Affairs personnel to update and correct the FSM's records, it was the FSM's responsibility to assess the financial ramifications occasioned by her change in marital status, to inquire into adding a spouse to her RCSBP/SBP, and ensure any documentation required to add the applicant to her RCSBP/SBP was completed in a timely manner.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting 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 to amend the decision of the ABCMR set forth in Docket Number AR20120004626, dated 13 November 2012.



      _______ _  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)                                         AR20130007471



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ABCMR Record of Proceedings (cont)                                         AR20130007471



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