IN THE CASE OF:	  

		BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130016615 


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 correction of his record to show he enrolled his current spouse and newborn child in the Reserve Component Survivor Benefit Plan (RCSBP) in a timely manner.

2.  The applicant states he divorced his former spouse in “2004” and the divorce decree did not grant her any of his Army retirement benefits.   In early 2006, he enrolled in the RCSBP with Children Only coverage and retired later that year.

   a.  He remarried on 8 August 2009.  On 9 October 2009, he contacted the U.S. Army Human Resources Command (HRC), Call Center, regarding a change to his RCSBP.  He completed a DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) and sent it in along with a copy of his marriage certificate in December 2009.  He expected his records to be corrected.

   b.  After reading an article in Army Echoes, he recently checked the status of his SBP and discovered that his SBP category had not been changed.  He adds that he did not realize in 2009 that he had only 1 year to make a change to his SBP.

3.  The applicant provides a copy of a:

* Decree of Dissolution
* Certificate of Marriage

* Certificate of Live Birth
* DD Form 2656-6 (SBP Election Change Certificate)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born in December 1966.

2.  The applicant had prior honorable enlisted service in the U.S. Army Reserve (USAR), Regular Army, and Army National Guard (ARNG) from 7 December 1984 through 20 April 2003.

3.  He was appointed as a Reserve commissioned officer of the Army on 21 April 2003 and promoted to first lieutenant effective 21 April 2005.

4.  On 29 December 2005, the Acting Deputy Chief of Staff for Personnel, Army Element, Joint Force Headquarters, Washington ARNG, in the form of a 20-year letter, notified the applicant that his eligibility for retired pay had been established upon attaining age 60.  He was also advised of his entitlement to participate in the RCSBP and provided information on the program.

5.  A DD Form 2656-5 (RCSBP Election Certificate) shows in:

   a.  Section II (Marital/Dependency Status), he indicated he was not married and that he had dependent children;

   b.  Section III (Spouse/Dependent Child(ren) Information), he listed:

* Jonathon A. C------, son, born 4 September 1988
* Alexa C. C------, daughter, born 10 December 1996

   c.  Section IV (Coverage):

* item 12 (Options), he elected Option C (Immediate Annuity) - I elect to provide an immediate annuity beginning on the day after date of my death, whether before or after age 60
* item 13 (Type of Coverage), he elected Child(ren) Only coverage

   d.  Section V (Level of Coverage), he elected Full Retired Pay; and

   e.  Section IX (Member Signature), the applicant and a witness signed the document on 9 February 2006.

6.  State of Washington, Office of the Adjutant General, Camp Murray, Tacoma, WA, Orders 292-005, dated 19 October 2006, separated the applicant from the ARNG, effective 9 November 2006, and transferred him to the USAR Control Group (Retired Reserve).

7.  A review of the HRC, Integrated Web System, shows, in pertinent part:

   a.  On 9 October 2009, the applicant requested assistance with adding his new spouse to his SBP.  He was referred to a website to download the SBP Election Change form and advised to submit the form, along with a copy of his marriage certificate.

   b.  On 11 February 2011, the applicant inquired into adding his spouse to his RCSBP.  The HRC official noted that when the applicant received his 20-year letter, he received automatic coverage for his children.  When he remarried, he had one year to add his spouse, which he did not do; however, he now wants to add his spouse.  The HRC official sent the following response to the applicant:
"I see in our system where you contacted HRC on 9 October 2009, requesting assistance to add your wife.  You were advised to print the SBP change forms and send in a copy of your marriage certificate.  That information was never received in our office.  Your only recourse is to petition the Board.  When you didn't make an election within a year of your marriage, you closed the category and have children only coverage."

   c.  On 21 February 2013, an email message was received from the applicant seeking information on filing an application with the Army Review Boards Agency.  He was provided instructions and a copy of a DD Form 149.

8.  In support of his application, the applicant provides the following documents:

   a.  Superior Court of Washington, County of Lincoln, Decree of Dissolution, issued on 9 May 2005, that shows the applicant and Charmell Y. C------ were divorced on 9 May 2005.  It also shows the applicant was awarded all of his employment-related retirement benefits, including his military retirement benefits through the United States ARNG.  It does not show that the former spouse was awarded any of his military retirement benefits.

   b.  State of Washington, County of Pierce, Certificate of Marriage, signed 
8 August 2009, that shows the applicant and Dana D. S-------- were married on 
8 August 2009.
   
   
   
   c.  State of Washington, Department of Health, Certificate of Live Birth, issued 24 February 2011, that shows Rylan D. C------, was born on 12 February 2011, and that the applicant and Dana D. S-------- are her parents.

   d.  DD Form 2656-6, dated 31 August 2013, that shows the applicant requested a change in SBP coverage from Child Only to Spouse and Children based on marriage and acquiring a dependent.  The applicant listed Dana D. 
C------ as his spouse and his daughters (Alexa and Rylan) as dependent children.

9.  In connection with the processing of this case, the Defense Finance Accounting Service (DFAS) was asked to verify information relevant to the applicant's SBP election, coverage, and participation.  A DFAS official indicated the applicant is currently listed as a future retiree and that no other information is, as yet, on file at DFAS.

10.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Retiring members and spouses were to be informed of the SBP options and effects.

11.  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.

12.  Army Echoes is 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.  Since April 2007, every issue contained the warning or a similarly-worded warning, "Remember:  You are responsible for updating your retired pay file information at DFAS-CL (use mailing address below) within 1 year of the event if you marry, remarry, have a child, are widowed or divorced and need to make or update a Survivor Benefit Plan (SBP) election."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show he enrolled his current spouse and newborn child in the RCSBP in a timely manner because he contacted the HRC, Call Center, on 9 October 2009, regarding a change to his RCSBP, he submitted the change, but it was not processed.

2.  Records show that the applicant was divorced at the time he submitted his RCSBP Election Certificate for Option C (Immediate Annuity), Children Only coverage, full retired pay, on 9 February 2006.  He was transferred to the Retired Reserve on 9 November 2006.

3.  He remarried on 8 August 2009.

4.  The evidence of record shows that the applicant contacted the HRC Call Center, on 9 October 2009, and requested assistance with adding his new spouse to his SBP.

   a.  He was provided advice on downloading and submitting an SBP Election Change form, along with a copy of his marriage certificate.

   b.  The applicant states in his application that he printed out a DD Form 149 and sent it in December 2009, which would indicate that he applied to the Army Board for Correction of Military Records (ABCMR) at that time.  However, there is no evidence of record of such application.  Moreover, an application to the ABCMR would not have been appropriate at that time since the applicant was still within the 1-year period for submitting (to HRC) a change to his SBP based on his marriage in August 2009.

   c.  There is no evidence the applicant submitted an application to change his SBP coverage from Children Only to Spouse and Children coverage within 
1 year of the date of his marriage.

   d.  Thus, his contention that he made timely application is not supported by the evidence of record.

5.  The governing law is clear in that a person who is not married, but who later marries, may elect to participate in the SBP with spouse coverage.  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.  The applicant failed to make such an election within 1 year after the date on which he was married.

6.  Regrettably, in view of the foregoing, the applicant is not entitled to correction of his record to show he enrolled in the SBP with spouse coverage.

7.  The applicant is advised that, on occasion, the U.S. Congress enacts into law an SBP Open Season.  For example, Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  It required the retiree to pay monthly premiums starting on the date of enrollment and a buy-in premium covering all costs that would have been paid for the election if it had been made at the first opportunity to do so.  Therefore, the applicant is encouraged to monitor military media and/or websites in the event an SBP Open Season is enacted into law in the future.

8.  The applicant is also advised that he may wish to contact the nearest Retirement Services Officer (RSO) for additional information and assistance regarding the SBP.  A listing of RSOs by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp.

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)                                         AR20130016615



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130016615



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1