IN THE CASE OF:  

		BOARD DATE:  10 March 2015

		DOCKET NUMBER:  AR20140011061


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 his current Reserve Component Survivor Benefit Plan (RCSBP) election be changed from child only to spouse and child.

2.  The applicant states he was not properly counseled by his unit.  He has been trying for the last 2 years to change his RCSBP election.  His unit personnel failed to do their job responsibly causing his paperwork to now be out of the appropriate time frame.

3.  The applicant provides:

* State of Georgia Final Judgment and Decree of Divorce, dated 15 May 2006
* Notification of Eligibility for Retired Pay (20-year letter), dated 6 July 2007
* DD Form 2656-5 (RCSBP Election Certificate), dated 12 April 2008
* Marriage License and Certificate, dated 8 December 2011
* DD Form 2656-6 (SBP Election Change Certificate), dated 7 December 2012
* Memorandum, Request for Transfer to the United States Army Reserve (USAR) Control Group (Retired Reserve), dated 12 September 2013
* DD Form 2656-6 (SBP Election Change Certificate), dated 19 December 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 12 April 1969.
2.  He enlisted in the ARNG on 29 January 1996.  He served through multiple reenlistments or extensions in a variety of assignments and he attained the rank/grade of first sergeant (1SG/E-8).

3.  On 6 July 2007, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter informed him that he had a period of 90 days from receipt of the letter in which to submit his election for RCSBP coverage or else be automatically enrolled under option C, for spouse and children based on full retired pay.

4.  The applicant completed a DD Form 2656-5 wherein he indicated he was not married but had a dependent child, son, born in November 1995.  He elected children only RCSBP coverage based on full retired pay under Option C (immediate coverage).  The form was witnessed.  Both the applicant and the witness signed and dated the form on 12 April 2008.

5.  The applicant remarried on 7 December 2011.  His records do not show he requested a change to his RCSBP election from "dependent children only" to "spouse and children" coverage within 1 year of becoming eligible to make such a change.

6.  On 7 December 2012, a year and a day after his marriage, the applicant signed a DD Form 2656-6 wherein he requested a change in coverage from "child only" to "spouse and children" as a result of his marriage.  Block 8 of this form states that this election must be submitted within the first year of marriage.

7.  On 12 September 2013, the applicant submitted a request for transfer to the Retired Reserve to be effective 9 December 2013.

8.  The applicant signed another DD Form 2656-6 on 19 December 2013 wherein he requested to change his SBP coverage from child only to spouse only.  He did not indicate what condition(s) occurred that triggered eligibility to change his SBP coverage.

9.  The applicant's National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he was transferred to the Retired Reserve effective 15 January 2014.

10.  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.
11.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component 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

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be changed by showing he changed his RCSBP election from child only to spouse and child because he was not properly counseled by his unit personnel.

2.  The available evidence shows that the applicant was issued his 20-year letter in July 2007 giving him a 90-day period in which to submit his RCSBP election.  Although the evidence shows he submitted an election dated 12 April 2008, long after the expiration of the 90-day period, it appears that the form was accepted and processed as timely giving him valid child only coverage.

3.  The available evidence shows the applicant tried to add his new spouse and states his unit gave him several pieces of advice about how to add her to his coverage.  The applicant completed paperwork adding his first spouse one day after his first anniversary.  While technically late, this mistake is somewhat common and often is caused by confusion regarding the distinction between when spouse coverage can be added (at any time prior to the 1-year anniversary) and when a newly acquired spouse becomes eligible to actually receive an annuity (at any time on or after the 1-year anniversary).

4.  Given the credibility of the applicant's explanation, and as a matter of equity, it would be appropriate to correct the applicant's records to show that he had submitted an RCSBP election for spouse and child within the 1-year timeframe of his marriage in 2011.

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 had submitted a properly completed request within a year of his 
7 December 2011 marriage and had elected spouse and child RCSBP coverage.



      _______ _   _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)                                         AR20120014871



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ABCMR Record of Proceedings (cont)                                         AR20140011061



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