IN THE CASE OF:	  

		BOARD DATE:  5 March 2014

		DOCKET NUMBER:  AR20130011026 


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 a change of his Reserve Component Survivor Benefit Plan (RCSBP) to show his beneficiary is his "spouse" not his "children."  

2.  The applicant states, in effect: 

   a.  He believes an injustice occurred on 1 August 1991.  He received via U.S. Mail his 20-year letter notifying him of his eligibility for retirement pay at age 60. At that time he was not told he had to go to the personnel section and fill out a 
DD Form 1883 (SBP Election Certificate) to elect a person for SBP.  He never filled out any forms.  In June 1991, he filed for divorce from his first wife and his divorce was final on 6 February 1992.  The next unit drill in 1992, he went to the State Joint Force Headquarters Personnel Section and gave them a final copy of his divorce decree and asked if there were any forms that he needed to update for his file.  The personnel section asked him to update a DD Form 93 (Record of Emergency Data) and SGLV Insurance Election Certificate.  On 17 July 1994, his records were reviewed and the reviewing personnel noticed that a DD Form 1883 was not filled out for his RCSBP.  So, he filled out the DD Form 1883 to elect his son (John) and daughter (Heather) who were still under age 22.  At the time he was engaged and getting married on 30 October 1994.  Personnel informed him that he could change the election after the marriage had taken place.  They told him that he could file a change by writing a letter to the U.S. Army Human Resources Command (HRC).


	b.  After he was married and around 15 November 1994, he wrote a letter changing the election to his current spouse "Karen."  His wife was recovering from breast cancer and it was important to him to have it changed.  He believed that with that letter his request was honored and that she was the beneficiary since he didn't receive any correspondence back.  On 14 January 2013, he filled out the application for retired pay and all the necessary forms, the DD Form 108 (Application for Retired Pay Benefits) and the DD Form 2656 (Data for Payment of Retired Personnel), required to retire on 4 April 2013.  He was told by HRC that the RCSBP would be going to his spouse and that they would have to pay a monthly payment.  

	c.  On 23 April 2013, he received a letter that gave the information on his retirement pay and benefit.  This is when he noticed that the RCSBP election was wrong.  He is now requesting that the election be granted for his spouse "Karen" to receive the RCSBP upon his death.  He retired with the Delaware Army National Guard (DEARNG) with 42 years of service and served a tour in Iraq.  He has been married for over 18 years and all of his children are married and have a family of their own.  All of their financial planning is based on his wife receiving benefits upon his death.  She will experience a financial hardship if his request is not honored.  He requests a correction to the error and to have his RCSBP be changed to his spouse. 

3.  The applicant provides:

* 2013 DD Form 108
* 2013 DD Form 2656
* 1991 Notification of Eligibility for Retired Pay (20-year letter)
* 1994 DD Form 1883
* 2011 Retention beyond 60 request
* 2013 Summary of Retired Pay Account
* 1992 Final Divorce Decree
* 1994 Certificate of Marriage

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 3 June 1952.  

2.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and DEARNG and executed an oath of office on 16 April 1977.  


3.  On 1 August 1991, the DEARNG issued the applicant his 20-year letter.  With the letter, he was sent an SBP summary informing him of his options and timeframes to submit an RCSBP election.  

4.  There is no indication he submitted a DD Form 1883 within 90 days of receiving his 20-year letter.  

5.  The date of his marriage to his spouse "Paula" is unknown.  He provides a one-page Final Decree of Divorce, dated 19 February 1992, that shows he and "Paula" were divorced on that date.  

6.  On 17 July 1994, he completed a DD Form 1883.  He indicated he was not married but had dependent children, Heather (born in 1977) and John (born in 1978).  He elected children RCSBP coverage, Option C (immediate coverage), based on the full amount.  This form shows in item 18 (Is this the only election of coverage you have submitted under the new SBP) the applicant answered in the negative.

7.  On 30 October 1994, he and "Karen" were married.  There is no indication he submitted a change to his RCSBP election at any time after this marriage.

8.  On 12 April 1996, he was reappointed in the DEARNG as a Reserve warrant officer.  He was promoted to chief warrant officer four (CW4).  

9.  On 14 January 2013, he submitted a DD Form 108, requesting retirement on 4 April 2013.  With his request, he submitted a DD Form 2656 wherein he indicated he was married to "Karen" (on 30 October 1994) and they have no dependent children.  He elected spouse SBP coverage, based on the full amount.  He and a witness signed this form but it is not notarized.  

10.  On 7 February 2013, HRC published Orders C-02-390934, retiring the applicant and placing him on the Retired List in his retired rank of CW4, effective 4 April 2013.  

11.  On 23 April 2013, officials at the Defense Finance and Accounting Service (DFAS) established a retired pay account for him.  In their Summary of Retired Pay Account, DFAS stated he elected "Children" only RCSBP coverage on 17 July 1994 based on the full amount.  

12.  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. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

13.  Public Law 95-397, enacted 30 September 1978, established the RCSBP and 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 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

14.  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.

15.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant and "Paula" were married on an unknown date (but he indicated they filed for divorce in June 1991) and they were divorced on 19 February 1992.  Their divorce decree is not available for review with this case.  It is unclear if his divorce decree stipulated he would make a former spouse election.  

2.  The applicant was issued his 20-year letter on 1 August 1991.  He was married to Paula at the time.  By law and regulation, RC Soldiers who complete 20 or more years of service are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP.  The 

law in effect at the time required the Soldier to make an election and return the enrollment form within 90 calendar days of receipt.  The applicant's records do not indicate he elected to participate in the RCSBP within 90 days of receiving his 20-year letter.

3.  In the absence of a firm election within 90 days, and by not responding to his 20-year letter notification, the applicant effectively deferred his SBP election to age 60.  As this was a deferral as opposed to an affirmative election to decline full spouse coverage, notice to the spouse "Paula" was not required.  

4.  The applicant completed a DD Form 1883 on 17 July 1994.  It is unclear why he completed this form as he was no longer within his 90-day window to make an election.  He answered in the negative to the question "Is this the only election of coverage you have submitted under the new SBP?"  This indicates he previously made an election.  Such an election is not filed in his records, and his 1994      DD Form 1883 was invalid.  

5.  The applicant married "Karen" on 30 October 1994.  Since he had been married at the time he received his 20-year letter he was not eligible to make a change in his RCSBP election from "children only" to "spouse" within 1 year of acquiring his spouse and could not add spouse coverage except during a Congressionally-approved open enrollment period.  The law established an Open Season to be conducted from 1 October 2005 through 30 September 2006, which effectively gave the applicant an opportunity to enroll his spouse in the RCSBP.  

7.  The applicant then retired on 4 April 2013.  In connection with this retirement, he completed a DD Form 2656 wherein he indicated he was married to "Karen" and he elected spouse SBP coverage based on the full amount.  This election was invalid because it was not notarized and, because he was married at the time he received his 20-year letter, his RCSBP election of child only coverage rolled over into the standard SBP form was signed by him and a witness but not notarized.  

8.  However, his 1994 RCSBP election should never have been accepted.  It was received well after he received his 20-year letter in August 1991.  As a matter of equity, his records should be corrected to show the RCSBP election he made in 1994 never entered military channels and that he made a spouse SBP election in connection with his retirement in 2013. 


BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* showing he never made an RCSBP election
* showing he submitted an SBP election for spouse coverage only based on the full amount upon his retirement in April 2013
* showing his SBP election for spouse coverage was accepted and processed by the appropriate office



      _______ _  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)                                         AR20130011026



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ABCMR Record of Proceedings (cont)                                         AR20130011026



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