IN THE CASE OF:  	  

		BOARD DATE:  6 January 2015	  

		DOCKET NUMBER:  AR20140007495 


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, in effect, correction of his records to show he elected Survivor Benefit Plan (SBP) coverage for his spouse within one year of his remarriage.  

2.  The applicant states:

* when he registered his wife with the Defense Enrollment Eligibility Reporting System (DEERS) shortly after remarriage, he was told that coverage would be automatic and would be effective at the one-year anniversary
* he had conversations with officials at the Defense Finance and Accounting Service (DFAS) within one year of his marriage; he was assured DFAS records were in order and coverage would begin on 14 February 2014
* he is now being told his spouse is ineligible for the SBP benefit because he did not submit the required form within 1 year of his marriage
* he was divorced on 5 May 2008 and he had since remarried on 14 February 2013 
* he called DFAS in April 2013 and asked why premiums were not being deducted from his retired pay; he was assured the deductions would begin at the one-year anniversary and coverage would start automatically
* he called DFAS multiple times after that to ensure everything was in order and he was told the same thing 
* when he discovered no premiums were being deducted in April 2014, he contacted DFAS and was told he would need to submit the DD Form 2656-6 (SBP Election Change Certificate) 
* he mailed the form in April 2014 and by then he was told it was received beyond the one-year mark 

3.  The applicant provides:

* DD Form 2656-6, dated 4 April 2014
* Certificate of marriage (Connie), dated 12 February 2013
* Emails to DFAS
* Notification of Eligibility for Retired Pay at Age 60
* DD Form 1883 (SBP Election Certificate)
* DD Form 2656 (Data for Payment of Retired Personnel), dated 7 July 2008
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Certificate of Marriage (Linda), dated 1 January 1981
* Decree of Divorce (Linda), dated 23 April 1999
* Certificate of Marriage (Nancy), dated 2 October 1971
* Divorce Decree (Nancy), dated 30 June 1977

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in May 1948. 

2.  He was appointed as a Reserve commissioned officer of the Army National Guard (ARNG) on 8 April 1966.  He served in a variety of assignments and he attained the rank of captain. 

3.  He and Nancy were married on 2 October 1971.  They were divorced on 30 June 1977.  Their divorce decree is silent with respect to the SBP. 

4.  He and Linda were married on 1 January 1981. 

5.  On 14 January 1987, NGB issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

6.  On 8 February 1987, he completed a DD Form 1883.  He indicated he was married to Linda but they had no dependent children.  He did not mark the type of Reserve Component SBP (RCSBP) coverage he desired but he indicated that his election was based under Option C (immediate coverage), based on the full amount.  This form also has a hand-written entry, next to the name of the spouse (Linda) that reads "Divorced." However, he was not divorced from Linda until 1999.
7.  He was separated from the ARNG on 5 April 1987.  His NGB Form 22 shows he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  It appears he was promoted to major (MAJ) while in the USAR. 

8.  It is unclear if and when he was discharged from the USAR and/or transferred to the Retired Reserve.  

9.  On 23 April 1999, he and Linda were divorced.  Their divorce decree is also silent with respect to the SBP. 

10.  On 7 July 2008, in conjunction with his application for retired pay at age 60, he completed a DD Form 2656.  He indicated he was single and he had no dependent children.  He elected not to participate in the SBP. 

11.  On 31 July 2008, the U.S. Army Human Resources Command published Orders P07-811290 placing him on the Retired List in his retired rank of MAJ effective 5 May 2008. 

12.  On 11 February 2013, he and Connie were married. 

13.  On 4 April 2014, he completed a DD Form 2656-6.  He indicated that his current coverage is "No coverage" and he would like to change the coverage based on his marriage.  He elected spouse coverage based on the full amount.  He authenticated this form with his signature and had it notarized. 

14.  On 10 April 2014, he corresponded with DFAS and indicated he was told his SBP coverage would automatically begin at the one-year mark.  After noticing no premiums were being deducted, he inquired and was told to complete the DD Form 2656-6.  He mailed the required form. 

15.  On 17 April 2014, DFAS responded that when a retiree does not have an eligible beneficiary at retirement and later gains a beneficiary, a request for coverage must be made within one year.  Since his application was not received until after the one-year anniversary, DFAS is unable to cover his spouse at this time.  

16.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.

17.  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 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

18.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage.

19.  Public Law 106-398, dated 30 October 2000, requires that upon receipt of a 20-year/15-year letter, a qualified Reserve Component member who is married will automatically be enrolled in the RCSBP under Option C, spouse and children coverage, based on the full amount, unless spouse concurrence is provided to allow a different option. 

20.  Title 10, U.S. Code, section 1448(a)(5) (participation by person marrying after retirement, etc.—).  

	a.  (A)  Election to participate in plan.—  A person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan.  

	b.  (B)  Manner and time of election.—  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  

	c.  (C)  Limitation on revocation of election.—  Such an election may not be revoked except in accordance with subsection (b)(3).  

	d.  (D)  Effective date of election.—  The election is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned.  

	e.  (E)  Designation if RCSBP election.—  In the case of a person providing a reserve-component annuity, such an election shall include a designation under subsection (e).
DISCUSSION AND CONCLUSIONS:

1.  The applicant's complete service records are not available for review.  All documents are provided by the applicant.  The documents he provides show he served in the ARNG from April 1966 to April 1987.  Upon his separation from the ARNG, he was transferred to the USAR.  He was ultimately retired as a MAJ on his 60th birthday in May 2008. 

2.  When he received his 20-year letter in February 1987, he completed a DD Form 1883.  He did not mark the type of RCSBP coverage he desired, despite indicating that he was married, and marking Option C based on the full amount.  Because he did not mark the type of coverage, it appears this form was invalid and because this form was invalid, he, in effect, deferred election to age 60.  

3.  When he turned 60 and applied for retired pay, he was single.  He submitted a DD Form 2656 and indicated that he was single and did not desire to participate in the SBP.  However, after his retirement, he married on 14 February 2013.  He then communicated with DFAS regarding the SBP but did not submit a formal SBP election form until April 2014 which was already beyond the one-year window allowed by law.  

4.  By law, a member 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 one year after the date on which that person marries or acquires that dependent child.  

5.  The applicant may have communicated with DFAS regarding the SBP but his request was not written, signed by him, and received by the Army or DFAS within one year of his marriage.  As such, he does not meet the criteria established by law to enroll his spouse in the SBP.  

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)                                         AR20140007495





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007495



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1