IN THE CASE OF:	  

		BOARD DATE:	    24 September 2015

		DOCKET NUMBER:  AR20150000588 


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 1 year of his remarriage.

2.  The applicant states:

* his current SBP election is no coverage; he wishes to have his retirement paperwork and Defense Finance and Accounting Service (DFAS) listing to have his SBP enrollment as married, Option C, spouse only coverage 
* at the time of his active duty retirement, he was single/divorced and therefore his "plan selection was for the same"
* he remarried on 23 June 2012 but he was not told the program rules for a 12-month sign-up window from the time of a life-changing event (marriage) 
* he missed the sign-up window to enroll his spouse in the SBP program and he now wants the record corrected
* the program was not explained to him and he did not know there was more to enrolling his spouse 

3.  The applicant provides:

* Marriage certificate
* DD Form 2656-5 (Reserve Component SBP Election Certificate) 
* DD Form 2656-6 (SBP Election Change Certificate) 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in July 1957. 

2.  Having had prior enlisted and commissioned officer service, he enlisted in the Vermont Army National Guard (VTARNG) on 17 August 1982.  He held military occupational specialty 79T (Recruiting Retention Noncommissioned Officer). 

3.  He served through reenlistments or extensions in a variety of assignments, with multiple periods of active duty to include the Active Guard Reserve (AGR) program, and he attained the rank/grade of sergeant first class (SFC)/E-7. 

4.  On 24 September 1998, the VTARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

5.  On 29 January 1999, he completed a DD Form 1883 (SBP Election Certificate).  He indicated he was not married but he had dependent children.  He listed his children as Maureen (adopted, was born in April 1978) and Dezerae (natural, was born in October 1981).  He elected "Children only" RCSBP Option C (immediate coverage), based on the full amount.  

6.  He retired on 30 June 2007 by reason of sufficient service for regular retirement.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) show he completed over 20 years of active federal service. 

7.  He married his spouse Lisa on 23 June 2012.  

8.  On 24 October 2014, he dispatched a DD Form 2656-5 (Reserve Component SBP Election Certificate) and a DD Form 2656-6 (SBP Election Change Certificate) to DFAS requesting spouse SBP coverage, Option C, based on the full amount. 

9.  On 4 December 2014, by letter, DFAS returned his request without action and indicated his election was not valid as it was not submitted within one year of his marriage.  

10.  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.

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.  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 1 year after the date on which that person marries (emphasis added) or acquires a dependent child.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the Regular Army and in the ARNG, as a commissioned officer and in an enlisted status.  He was issued a 20-Year Letter in September 1998.  At the time he was not married but had dependent children. He elected children only RCSBP coverage under Option C based on the full amount.  

2.  He entered active duty in 1996 as a member of the AGR program and served continuously until he retired on 30 June 2007.  He states he was not married at the time of his active duty retirement in June 2007 and as such, no election was made.  

3.  After his retirement, he married on 23 June 2012.  He then communicated with DFAS regarding the SBP but did not submit a formal SBP election form until October 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 still have an opportunity to enroll his spouse in this program during an Open Season.  Open Seasons are authorized by Congress.  The last Open Season was in 2005.  It is unknown when the next Open Season would be.  Because he did not submit his request within one year of his marriage and because there is no Open Season at the present time, the applicant 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)                                         AR20150000588



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ABCMR Record of Proceedings (cont)                                         AR20150000588



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