BOARD DATE:	  29 October 2015

		DOCKET NUMBER:  AR20150001122 


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 the Reserve Component Survivor Benefit Plan (RCSBP) Option C (elect a beneficiary receive an annuity immediately upon their death if before age 60 - full coverage) for his spouse upon their marriage on 11 September 2010.

2.  The applicant states:  

   a.  In May 2014, he retired from the U.S. Army Reserve (USAR) after completing 30 years of honorable service; 11 years of which was active duty service.  He tried to correct his SBP election before he retired through his last unit, the U.S. Army Human Resources Command (HRC), and then the HRC Inspector General (IG).  The HRC IG notified him that his only avenue of redress was the Army Board for Correction of Military Records (ABCMR).
   
   b.  When he received his 20-Year Letter in 2004 (i.e., 2005), he was not married and he was deployed.  The letter stated there was a choice of three options for survivor benefits and if no option was chosen then Option C would be the default option.  He fully expected that the default option for automatic enrollment occurred and was never informed it did not.  The 20-Year Letter does not state anything about single Soldiers.  The way it is written implies that all Soldiers will be automatically awarded Option C if no option was selected.
   
   c.  When he married in 2010, he continued to expect that his spouse was covered for SBP under Option C.  Since he had no reason to change his SBP election from Option C, he made no change to the Option C election.  Nowhere in the 20-Year Letter does it state that he had 1 year from the date he got married to make an election change.  Nowhere does it provide the information or explanation of the Federal law he was provided by the HRC IG.  Following his marriage, he enrolled his spouse in the Defense Eligibility Enrollment Reporting System and changed his life insurance beneficiaries; he was never asked about SBP.  
   
   d.  When he deployed in 2012, he and his spouse reviewed all required items of the predeployment processing to ensure his spouse was the beneficiary and/or covered for benefits.  They were assured she was legally the beneficiary for his Servicemembers' Group Life Insurance (SGLI) and other survivor benefits.  Upon redeployment, the SBP issue was never reviewed or acknowledged.  
   
   e.  It wasn't until his preretirement briefing on 25 January 2014 that he discovered his spouse was not covered under the RCSBP and he had no active option for his spouse, Kristen.  He was shocked that his automatic enrollment was not active or relevant and he had no SBP election.  He was never informed of the requirement to reapply for Option C [once he got married] as he thought it was already applied.  

	f.  He served five tours in the Middle East.  Along with all of these tours, many chronic health issues have developed and he feels a misunderstanding occurred which could negatively impact his family in regards to his 20-Year Letter.  Due to his deployments to the Middle East and exposure to toxic fumes and sand storms, he has developed reactive airway disease (Iraqi asthma) which has recently reached a chronic debilitating stage and renders him steroid dependent.  He was also injured with a severe concussion from a parachute accident that contributed to other injuries that continue to worsen.  

   g.  He has developed many other health issues but his reactive airway disease is by far his most debilitating problem and has him tethered to daily medications and nebulizer treatments to sustain his breathing.  While he is still trying to work in his civilian job, it is more and more difficult; he now has to wear a mask to many places due to chronic coughing and fear of exposure.  Travel of any kind is insurmountable.  His illnesses have not just affected his life but stress for his care has also affected his spouse's health and job as well.  He would be grateful if his request was reviewed and resolved with an immediate change of status to show he elected Option C SBP full coverage for his spouse.

3.  The applicant provides his 20-Year Letter; orders; a letter, dated 5 March 2015; and a screenshot from the HRC Retirement Portal, printed on 23 March 2015.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 4 January 1963.  His records show, after serving over 10 years in the Regular Army as a commissioned officer, he was appointed as a captain in the U.S. Army Reserve (USAR) on 31 August 1995.  He was promoted to the rank/grade of lieutenant colonel (LTC)/O-5 on 26 January 2004.

2.  On 7 July 2005, he entered active duty as a member of his USAR unit in support of Operation Iraqi Freedom.  

3.  On 6 October 2005, the USAR issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  His records show he was divorced at the time and he had no children.  It is not known if his divorce settlement required him to provide SBP for his former spouse.  The 20-Year Letter notified him, in part, that:

	a.  He had completed the required years of service and he would be eligible for retired pay upon application at age 60.  A qualified RC member, who was married, would automatically be enrolled in the RCSBP under Option C, spouse and child(ren) coverage based on full retired pay, unless spouse concurrence was provided for one of the elections listed below.

	b.  He must notify the command, using the DD Form 2656-5 (RCSBP Election Certificate) or DD Form 1883 (SBP Election Certificate), one of which was found in the enclosed booklet, of his decision within 90 days of the letter.

	c.  If he had been mobilized and deployed, he or his spouse may notify the command of his status and inability to make an election.  Upon written request for deferment, he would be granted a deferment from election for 90 days following his release from active duty.  At that time, he must notify the command of his election or he would automatically be covered under Option C.

4.  He was honorably released from active duty on 1 July 2007 in the rank of LTC to the control of his USAR unit.  He completed 1 year, 10 months, and 25 days of creditable active service during this period of service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he served in Kuwait from 13 August 2005 to 10 December 2006.

5.  The applicant and his spouse were married on 11 September 2010.  He was promoted to the rank/grade of colonel (COL)/O-6 on 3 February 2012.  On 29 April 2012, he entered active duty as a member of his USAR unit in support of Operation Enduring Freedom.  
6.  He was honorably released from active duty on 16 May 2013 in the rank of COL to the control of his USAR unit.  He completed 1 year and 18 days of creditable active service during this period of service.  The DD Form 214 he was issued for this period of service shows he had 15 years, 11 months, and 6 days of prior active service and 12 years of prior inactive service.

7.  It appears that in January 2014, in preparation for his upcoming retirement, he attended a retirement briefing and was informed that as he had not made an SBP election for his spouse within 1 year of their marriage, he would not be able to do so until he applied for retired pay at age 60.  

8.  Orders 14-086-00100, dated 27 March 2014, issued by Headquarters, 99th Regional Support Command, Fort Dix, NJ, honorably released from the USAR and transferred him to the Retired Reserve effective 31 May 2014 by reason of maximum authorized years of service.  

9.  In a letter to his Congressman, dated 16 December 2014, from the Defense Finance and Accounting Service (DFAS), a DFAS official stated, in part:

	a.  Reserve service members have the option to make an SBP election once they reach 20 years of service.  When electing RCSBP immediate annuity coverage, the service member does not actually pay any premiums for the annuity until retirement.  To offset the period of coverage without any premium costs, upon receiving retired pay, the retiree must pay an additional amount for the immediate survivor annuity option.  If the service member dies prior to his/her 60th birthday, the RC cost factor is paid from the annuity account.

	b.  [The Applicant] married on 11 September 2010 and did not notify DFAS within 1 year of his marriage to add his spouse as a beneficiary.  They determined his concerns fell under the purview of the Army Review Boards Agency (ARBA) and were forwarding the inquiry to ARBA.

10.  The applicant provides a screenshot from the HRC Soldier Management System portal, printed on 23 March 2015.  This shows a list of his retirement years/points and in the Survivor Benefit Information (SBI) block of the printout it shows the entry "Option C, I elect to provide an immediate annuity beginning on the day after date of death, whether before or after age 60."  The information source for the SBI entry is not known.

11.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (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; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  SBP elections are made by category and not by name.

12.  Once a member elects either Options B or 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 and cannot cancel SBP participation or change options they had in RCSBP – it automatically converts to SBP coverage.  SBP elections are made by category and not by name.

13.  Title 10, U. S. Code, section 1448(a)(5), provides that a person who is not married or has no dependent child upon becoming eligible to participate in the RCSBP 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 in which that person marries or acquires that dependent child.  There is no provision that requires a person that marries to be counseled on the 1 year timeframe in which to make an election for spouse coverage.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that at the time the applicant received his
20-Year Letter in 2005, he held the rank of LTC and was divorced and had no children.  He was also deployed at the time and was released from active duty on 1 July 2007.  

2.  The 20-Year letter also notified him that if he was mobilized and deployed, he could defer his election until 90 days after his release from active duty; in his case that would have been 1 October 2007.  

3.  Notwithstanding his contention that he thought he had been automatically enrolled in Option C, it is reasonable to presume that as a LTC with no eligible family members, he would be aware the automatic enrollment provisions would not apply to him.  This is especially the case since the language in the 20-Year Letter regarding automatic enrollment clearly concerns Soldiers currently married or with children.  If he was unsure, he could have asked for clarification at that time.  In addition, his 20-Year Letter also stated a booklet was enclosed with the letter which would have explained the RCSBP election requirements in more detail. 

4.  By law, any change to add a spouse upon remarriage requires that change to be made within 1 year of the date of marriage.  In this case, the applicant remarried on 11 September 2010 and he did not make an RCSBP election for full spouse coverage within the 1-year required time frame.  Therefore, he does not meet the statutory requirement for the requested relief.  

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)                                         AR20150001122



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ABCMR Record of Proceedings (cont)                                         AR20150001122



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