IN THE CASE OF:	 

		BOARD DATE:	17 September 2015  

		DOCKET NUMBER:  AR20150003668 


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.  This case is being reconsidered as a result of a court remand from the United States District Court for the District of Columbia, Washington, DC.  The applicant requests reconsideration of his earlier applications to the Army Board for Correction of Military Records (ABCMR) for correction of his record by:

	a.  amending his DD Form 1883 (Survivor Benefit Program (SBP) Election Certificate), dated 31 October 1997, to show he elected enrollment in the Reserve Component SBP (RCSBP) under Option A (Defer) rather than "children only" Option C (Immediate Coverage);

	b.  amending his record to reflect no enrollment in the RCSBP;

	c.  terminating RCSBP premium deductions from his retired pay;

	d.  refunding him the deductions that he has paid since July 2012; and

	e.  making the changes necessary for his wife to be named as beneficiary of his RCSBP benefits

2.  The U.S. District Court for the District of Columbia directs the ABCMR to specifically address the Board's previous decision in Docket Number AR20050002726 on 13 December 2005, hereinafter referred to as the cited case.



3.  The applicant states, in effect, that:

	a.  A divorce decree, dated 3 October 1979, granted him full custody of both of his children.  When he went to pick up his daughter, Lxxxx, after a visitation period with her mother in Phoenix, AZ, his ex-wife refused to return her to him.  He reported this matter to the police and then returned home to Tucson, AZ, as he had to be at work the next morning.  The following week, he returned to Phoenix to retrieve his daughter and discovered her mother had abandoned the apartment and abducted his daughter.  The police would not help him without a court order and he could not afford to hire a private investigator so, he was unable to locate them.

	b.  In August 1997, Lxxxx called him out of the blue to inform him that she was living in her own house in Phoenix.  She also revealed that she had been injured in an automobile accident when she was 16 and was now confined to a wheelchair.  She was living with her boyfriend in a house that she had purchased with the proceeds from the insurance payment from the accident.

	c.  In August 1997, he was informed that he had reached the 20-year mark for qualifying service for retirement;

	d.  In October 1997, he was coerced into electing Option C on his DD Form 1883 by a Personnel Staff Noncommissioned Officer (PSNCO) even though he did not have any eligible dependents at the time.  The PSNCO advised him that unless he elected Option C and designated his daughter as the beneficiary, no one would ever get his SBP benefits.  The PSNCO told him that although the form indicated that his election would be irrevocable, it was not permanent because he would be able to make a new election when he turned 60 and began receiving retirement pay.  The DD Form 1883 clearly shows his daughter's age was 18 years and 5 months at the time of signing.

	e.  He married his current wife in December of 2004.  Because he still believed he could not make a new election under RCSBP, but that he could make a new election when he turned 60, he waited until he applied for retired pay in 2011, 9 months before he turned 60.  At that time, he filled out a DD Form 2656-5 (Data for Payment of Retired Personnel), electing his current wife as his RCSBP Beneficiary and turned it in with his retirement paperwork.  When he received his first retirement pay stub he learned that his election to change his SBP beneficiary from his daughter to his wife had not taken place.

	f.  He called the Defense Finance and Accounting Service (DFAS) and asked why his wife had not been named the beneficiary and he was told by a woman that she did not know why the change had not been made, but did figure what his costs would be for coverage and told him that she would send a phone log to the person who was in charge of these matters.  The next day, 27 July 2012, he received a call from a representative at DFAS, who informed him that under the law he was not entitled to make another election at age 60, and that his daughter would remain the named beneficiary of the RCSBP.

	g.  This is the point at which he began to research the laws covering the RCSBP.  His original research for the appeal and reconsideration to the ABCMR was extensive, and he believed that the Board would clearly see that they erred in their denial of the original appeal.  He felt that if he could clearly see that a mistake had been made and that there was a parallel case already adjudicated by the Board in the cited case which shows that someone else had been gran ted relief for what he thought was the same exact situation.  He felt he had provided enough evidence.  But when the reconsideration was denied and he discovered that he could not present any new evidence to the Board and had to go to court for any further remedy, he began an extensive internet search for answers.

	h.  During his research for the court case he filed, he discovered the law that clearly shows his daughter was not his dependent.  Title 10 United States Code (USC), Chapter 73, Sections 1447-1448, is the law that covers the Reserve Component Survivors Benefits Plan.  Section 1447 (Definitions) (11)(A)(i)(ii)(I)(II)(III) & (iii)(I)(II).  This reaffirmed to him that his daughter was not his dependent as she did not meet the requirements of the definition of a dependent as shown:  She was unmarried, over 18 years of age, was not attending any type of school, and she was not incapable of self-support as proven by the Warranty Deed showing that she had purchased her own home upon turning 18, on 4 March 1997, (prior to her contacting him in August).  After receiving the proceeds from the insurance policy that covered the accident, she was, and as far as he knows still continues to, live off the proceeds.  He provided a copy of a Warranty Deed, dated 21 March 1997, for the house she bought and resided in with her boyfriend in Phoenix.  Due to the fact that his daughter was abducted by her mother in 1983 and turned 18 prior to her getting in touch with him and owned and lived in her own home the section could not apply, as she was not living with him.  According to applicant, the law clearly requires that, not only must the child be incapable of self-support, but must also be living in a regular parent-child relationship as signified by the "and" under (ii)(III) above.

	i.  It is the applicant's contention that the Board did not follow the law (10 USC, Section 1447) when it determined that his daughter was his dependent and that his RCSBP election was irrevocable.  The Board failed to follow the law set forth in one of their own cases involving Sergeant First Class Jxxxx B-252930.  In this case, the Comptroller General of the United States reviewed the case and determined in 57 Comp. Gen 426(1978) file number B-252930 dated 
24 September 1993, which states "We have held that where a member is required to make an affirmative election to participate in the SBP and indicated an ineligible beneficiary, the election to participate is defective and must be considered invalid (57 Comp. Gen 426.(1978))."  Based on this decision, the election of the applicant's daughter as his beneficiary on the DD Form 1883 was invalid.  Thusly, the question of irrevocability of the election is moot, as the election was defective from the beginning.

	j.  According to applicant, the Board even stated in paragraph 4 of the "Discussion and Conclusions" portion of the original denial, which states "The applicant should have known that RCSBP participants do not make a new election once they tum 60 (because he was warned that the RCSBP election was irrevocable).  Their RCSBP election rolls over into the standard SBP.  Even though the applicant's child is no longer a dependent…."  The Board has stated in their own denial of appeal that his daughter was not his dependent.  So once again the Board failed to consider 57 Comp. Gen 426(1978), according to applicant. 

	k.  The applicant emphasizes that the Board also stated in the first paragraph of the "Discussion and Conclusions" portion of the Denial of Reconsideration "The applicant was single and had custody of his dependent child when he completed his DD Form 1883 on 31 October 1997 and elected to participate in the RCSBP for child only coverage."  But in paragraph above the applicant quoted paragraph 4 of the same section of the original Denial of Appeal, where the Board stated that his daughter was not his dependent.

	l.  The applicant also points out that the Board also stated in both the denial of the original request for correction and the subsequent request for reconsideration that Lxxxx was also in his custody based on the divorce decree.  In accordance with Arizona Revised Statute (ARS) 1-215, Item 3, (Definitions), the term adult means a person who has attained eighteen years of age.  Although he was the custodial parent as spelled out in the divorce decree from the Superior Court of the State of Arizona, Cochise County, dated 1 October 1979; he had not had physical custody of Lxxxx since 1983 when her mother abducted her.  ARS 25-503 Order of Support, (O) states in item (3), for the purpose of the chapter, a child is emancipated on the child's eighteenth birthday.  Because she was 18 and an adult she was no longer in his custody.  The applicant also asserts that in Arizona for an adult child over 18 to be placed into the custody of someone because of mental or physical incapacity it must be ordered by the court.  No such order was issued.


	m.  In the original appeal the applicant provided the Board with the cited case, identified the similarities in his situation, and pointed out the fact that the Board had granted full relief to the former service member (FSM) based on what he had believed to be the fact the FSM had selected an ineligible beneficiary. However, he found out later it was due to missing documentation in the FSM's official file.  But that notwithstanding, the FSM did elect an ineligible beneficiary.  Even though the FSM had checked the very same block "Option C" that the applicant chose on his DD Form 1883, the Board did not consider his election irrevocable.  In the "Consideration of Evidence" portion of the cited case the Board found that the FSM's Notification of Eligibility for Retired Pay at Age 60 was missing from his record.  However the FSM did provide a copy of the DD Form 1883 he signed 20 April 1995.  On which he elected his son as beneficiary of his RCSBP benefits.  The FSM selected "Option C, Children only, Immediate Coverage."  These are the exact same elections that the applicant made on his DD Form 1883.  In paragraph 12 of the denial of his reconsideration of appeal, the Board reiterated its' conclusions on the cited case.  In the second bullet point the Board stated that, "upon receiving his 20-year Letter, he completed a DD Form 1883 on 20 April 1995 and elected "children only" RCSBP coverage under option C (immediate coverage).  But in the granting of relief in the cited case, the Board granted relief because a document was missing and the missing document is discussed in the next paragraph.  In bullet point 5, with emphasis added, the Board said, "the evidence showed the member was not an eligible SBP participant in 1995 because he had no dependent child and no wife."  According to the applicant, this is exactly the same situation he was in, specifically no dependent children and no wife.

	n.  The Board in the in paragraph 4 of the "Discussion and Conclusions" area of the cited case, states: "The evidence of the record fails to show that the U.S. Army required the applicant to provide proof that the child listed on the DD Form 1883 was eligible for the RCSBP based upon being enrolled in full -time education, as required by the applicable regulatory guidance."  But in the denial of his request for reconsideration the Board stated in paragraph 3 of the "Discussion and Conclusions" section, with emphasis added by the Board, "There is no requirement to supply evidence of disability or full-time school enrollment at the time 'child only' RCSBP is elected".  These statements by the Board are totally contradictory, according to applicant.

	o.  In his request for reconsideration he pointed out to the Board that in paragraph 2 of the "Discussion and Conclusions" section the Board stated, "At a minimum, had the FSM died the child had the potential to receive an annuity simply by increasing his college courses load.  He was not barred in all scenarios nor was the applicant's daughter."  This would be a felony by illegally obtaining government benefits, the applicant states.  In the cited case, the Board had already determined the FSM's son was an ineligible beneficiary because he was not enrolled in school full-time and has not disputed the applicant's daughter being capable of self-support.  Title 10 USC, section 1448(a)(2)(B), clearly states that an election must  be made within 90 days of receipt of the 20-year letter.  There is no mechanism for a part-time student to change their status after the 90-day period expires.  If they were not an eligible beneficiary during the 90 day period when the election could be made or changed, they could not be elected later or increase their course load to obtain an annuity.  Title 10 USC, Section 1448(a)(4)(B), states "RESERVE COMPONENT ANNUITY - An election under paragraph (2)(B) is irrevocable if not revoked before the end of the 90-day period  referred to in that paragraph."  Based on these two portions of Title 10 USC Section 1448, there is no way to upgrade or downgrade elections for students after the 90-day period expires.  Also, based on 57 Comp. Gen 426(1978), the election in the cited case was invalid.

	p.  The applicant argues that in both his original appeal and his request for reconsideration the Board has not disputed his daughter's ability to support herself.  The Board's only claim is that he should have known better than to elect her.  Irrevocability of an election was only mentioned once in the cited case in paragraph 8, of the "Consideration of Evidence", while the Board was quoting Public Law 95-397.  But in his case "irrevocability" was used numerous times to bludgeon him in reference to his election.  The Board also stated in the "Discussion and Conclusion" paragraph 5 of the cited case, "The evidence of the record shows that the applicant was not an eligible SBP participant in 1995 because he had no dependent child and or wife."  The same condition he was in, yet his application was denied.  Even though the Board did stumble into the right decision in the cited case, there is no mechanism in the law to allow for an RCSBP election to be changed because of a document showing that the FSM's son was enrolled as a full-time student after the 90-day election period has closed.  The law only requires evidence of full-time enrollment or disability after the death of the Service Member.  In fact the Board cited, as explained in the above paragraph, stated in the denial of his request for reconsideration, that in fact there was no requirement to prove full-time enrollment in school. Without knowing the Comptrollers' decision 57 Comp. Gen 426(1978), the real reason that the election in the cited case was invalid.  The Board did come to the right conclusion in the cited case and the wrong one in his case, the applicant argues.

	q.  In his request for reconsideration, he pointed out to the Board that in July of 2013 a case before the U.S. District Court for the District of Columbia, Wilhelmus v Geren, Civil Action 09-662JEB), in the opinion published, F.C.C. v Fox Television Stations Inc. 129 S. Ct. 1800, 1810 (2009).  It requires the courts to "hold unlawful and set aside agency action, finding, and conclusions" that are arbitrary and capricious, an abuse of power, or otherwise not in accordance with the law." 5 USC sec 706(2)(A).  He believes that the decisions made in both his appeal and request for reconsideration were arbitrary and capricious and not in accordance with law.

	r.  Although this is not part of any law, the applicant provides that the following was provided in Law Review No l099 by Captain Samuel F. Wright, Judge Advocate General Corps (JAGC), U.S. Navy (Retired).  In a response to a Coast Guard person inquiring about his RCSBP election was told by the responding JAG Officer that because he had elected his sister in 2002, as the beneficiary of his RCSBP benefits upon his death and had not elected coverage for his new wife within the 1-year window, he had lost his opportunity to elect his wife.  But that in 2020 when he turned 60 he would have another opportunity to elect his wife.  The applicant only included this in his appeal and is addressing it here to show that even trained lawyers do not understand the complexity of the RCSBP.  It is clear to him that he made an error in electing his daughter.  The job of the ABCMR under Title I0 USC, Section 1552, is to correct errors.  A Board that is not abreast of all the laws that are applicable to a given case cannot render a fair decision and this is why this matter was brought before the court.  The Board has truncated the effort to correct errors by changing its' rules.  It now no longer allows the Service Members to request corrections based on the Boards' misreading of the law or new evidence after the first reconsideration.

	s.  The applicant argues that Title 10 USC, Section 1447 clearly shows that his daughter did not meet the requirements of the law to be his dependent.  She was over 18 and was neither incapable of self-support nor was she living with me in a "regular parent-child relationship."

	t.  The applicant asserts Title 10 USC, Section 1448 clearly shows that the Board erred in the cited case based on the ability to increase college workload or his daughter to become more disabled, to obtain RCSBP benefits.  After the 90-day window for election of beneficiaries has closed there is mechanism to change beneficiary status.  There is no requirement to provide proof of eligibility as far as proving full-time enrollment in school or extent of disability at the time of beneficiary election on the DD Form 1883 as stated by the Board in the denial of his "Reconsideration", and 10 USC 1448.

	u.  Under the U.S. Comptroller Generals' decision:  57 Comp. Gen. 426(1978), because an ineligible beneficiary was elected on his DD Form 1883, the election was invalid.  Because of the election being invalid the only legal election he could make under 10 USC 1448, was item 9c, Option A, in Section II of the DD Form 1883.

	v.  The applicant requests that the Board immediately make the changes necessary for his wife to be named as beneficiary of his RCSBP benefits.  He further requests that all premium payments between July 20 12 and present be waived because he believes that no benefits would have been paid to his daughter if he had died during this period, because she could not provide proof of the inability of self-support.  Also due to the fact that his wife would be denied benefits because of the denial of the Board in both the appeal and reconsideration, no one would have received any benefits from his RCSBP.  From the research he did on this matter, the only thing the Army would have done upon learning of his death, would be to declare that his daughter was not an eligible beneficiary and they would have returned the $0.1 6 per $100 in coverage a month he has been paying since July of 2012.

4.  The applicant provides:

* a 7-page statement
* copies of his previously denied applications and associated decisions
* a copy of the cited case
* copies of extracts from the legal cases he cited in his 7-page statement

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120015283 on 19 March 2013, reconsideration in ABCMR Docket Number AR20130015593 on 28 May 2014, and administrative record.

2.  The applicant did not provide any new evidence.  However, the U.S. District Court for the District of Columbia, Washington, DC, directed the Board to specifically address the Board's previous decision in Docket Number AR20050002726 on 13 December 2005 (the cited case).

3.  The record shows the applicant was born on 13 July 1952.  Following a period of service in the Regular Army, he enlisted in the Arizona Army National Guard (AZARNG) on 31 July 1986.

4.  The applicant's record shows that at the time of his enlistment in the AZARNG, the applicant was divorced and had full-time custody of two minor children:

* Fxxxxxxxx, born 31 August 1976
* Lxxxx, born 4 March 1979

5.  He continued to serve in a variety of assignments through multiple reenlistments/extensions and ascended the enlisted ranks to the rank/grade of sergeant first class (SFC)/E-7.  

6.  On 21 August 1997, the AZARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) notifying him that he had completed the required years of qualifying service for retirement and that he would be eligible for retired pay upon application at age 60.

7.  His record contains a DD Form 1883, dated 31 October 1997.  This form shows:

	a.  The applicant indicated he was not married, but did have a dependent child.

	b.  He listed the dependent child as Lxxxx, born 4 March 1979.

	c.  He further elected "children only" coverage, full amount, Option C (immediate coverage), under RCSBP.

	d.  The DD Form 1883 clearly states, in part:

		(1)  Important:  The decision you make with respect to participation in this SBP is a permanent irrevocable decision.  Please consider your decision and its effect very carefully.

		(2)  I have the following unmarried dependent children under age 22 (or over age 22 and incapable of self-support because of a disability incurred before age 18, or after age 18 but before age 22 while attending school).

		(3)  If the retiree does not elect option B or C at this time, and should die before age 60, the survivors will not receive benefits under Public Law
95-397.

8.  On 11 January 2004, the applicant was honorably discharged from the ARNG and transferred to the Retired Reserve. 

9.  On 24 December 2004, the applicant married his current spouse, Kxxxxxxx.  

10.  The applicant rendered a DD Form 108 (Application for Retired Pay Benefits), dated 7 September 2011, which shows he applied for retired pay, effective 13 July 2012.

11.  As part of his application, the applicant also rendered a DD Form 2656 which shows he was married to Kxxxxxxx at the time and had no dependent children.  He elected "spouse only" SBP coverage based on the full gross pay.

12.  On 13 July 2012, his 60th birthday, the applicant was placed on the Retired List.

13.  As proof of his daughter's ability to self-support, the applicant previously provided a copy of a Warranty Deed, dated 13 February 1997, which shows:  "For the consideration of Ten Dollars, and other valuable considerations (a single woman and a single man) do hereby convey to (the applicant's daughter) the following described real property situated in Maricopa County, Arizona…)."  This document list a lot number in a named area but does not provide a description of the property.

14.  The following information is from the cited case:

	a.  The Applicant's Request, Statement, and Evidence portion of the Record of Proceedings (ROP) shows:

		(1)  The 2005 applicant requested that his RCSBP election be changed from Option C to Option A coverage.

		(2)  The 2005 applicant stated that at the time he made his RCSBP election he was separated from his wife and son and believed his son to be eligible for the RCSBP based upon his being a full-time student in college.  However, his son was actually attending college on a part-time basis and not eligible for RCSBP coverage.

		(3)  The 2005 applicant provided a copy of his DD Form 1883, dated 20 April 1995, in support of his application.

	b.  The Consideration of Evidence portion of the ROP shows:

		(1)  The 2005 applicant's date of birth was 12 August 1944.  He served in the U.S. Army Reserve between 1964 and 1996 and was ultimately transferred to the Retired Reserve on 16 January 1996.


		(2)  The 2005 applicant's record is missing his Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year) letter; however, the he provided a copy of a DD Form 1883 that he completed on 20 April 1995.  Section II (Marital, Dependency, and Election Status) of this form shows that, at that time, the 2005 applicant indicated that he:

* was not married
* had a dependent child
* elected "Children only" coverage
* elected an annuity based on the "Full" amount of his retired pay
* elected Option C for immediate coverage

	c.  During the processing of this case, an advisory opinion was obtained from the Supervisor, Retirements and Annuities, Transition and Separations Branch, U.S. Army Human Resources Command, St. Louis, Missouri.  On 8 March 2005, the Supervisor of Retirements and Annuities recommended that the 2005 applicant's DD Form 1883 concerning his enrollment in the RCSBP be corrected to read "Option A (Defer) coverage".  He also recommend that the Defense Finance and Accounting Service correct the 2005 applicant's records to reflect no RCSBP enrollment, stop SBP deductions from his retired pay, and refund all previous deductions.  The 2005 applicant was provided a copy of the advisory opinion and subsequently concurred with the advisory opinion rendered in his case.

	d.  On 5 December 2005, an ABCMR staff member contacted DFAS regarding the 2005 applicant's SBP application.  That office provided a copy of the applicant's DD Form 1883, dated 20 April 1995, and DD Form 2656 dated 15 October 2002.  Section VI (Federal Income Tax Withholding Information), Item 14 (Marital Status) of the form contains an entry indicating "Single"; Section VIII (Dependency Information), Item 22 (Spouse) and Item 25 (Dependent Children) both contain the entry "N/A"; Section IX (SBP Election), Item 26 (Beneficiary Category) contains an "X" indicating "I Elect Not To Participate In SBP" and an "X" indicating "Do Not Have Eligible Dependents Under The Plan"; and Section X (Remarks), Item 29, is absent an entry.

	e.  The ABCMR analyst for the cited case noted the following cites:

		(1)  The DD Form 2656 is used to collect information needed to establish a retired/retainer pay account and provides instructions for completing the form.  The instructions for Section IX (SBP Election) provide, in pertinent part, that Reserve members who declined the RCSBP until age 60 must complete Items 26 through 31.  The instructions further provide that, if they elected either Immediate (Option C) or Deferred (Option B) RCSBP coverage and the elected beneficiary is no longer eligible, to annotate this in the Remarks section and provide supporting documentation with the form.

		(2)  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 RCSBP 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; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Normally an election, once made, is irrevocable except as provided for by law.  RCSBP/SBP elections are made by category, and beneficiaries are not designated by name.

		(3)  Title 10 USC, Section 1452(b)(1) provides the legal authority for reduction in retired pay for RCSBP participants with regard to "Child-Only Annuities."  Section 1452(b)(3) states, in pertinent part, that in the case of a participant in the Plan who is providing child-only coverage during a period before becoming entitled to receive retired pay, the retired pay of the participant shall be additionally reduced by an amount prescribed under regulations by the Secretary of Defense to reflect the coverage provided under the Plan during the period before the participant became entitled to receive retired pay.  Section 1452(b)(2) further states that there shall be no reduction in retired pay for any month during which the participant has no eligible dependent child.  However, Section 1452(b)(3) also states that the additional deduction from retired pay taken to pay for RCSBP coverage during the period before the participant became entitled to receive retired pay is taken without regard to whether there is an eligible dependent child during the month for which the deduction is made.  This assumes, of course, that the participant was eligible to enroll in the Plan when he or she received the 20 Year Letter because he or she had a dependent child at the time (10 USC, 1448(a)(2)(B)).

		(4)  Title 10 of the United States Code, section 1452(f) provides, in pertinent part, that a person is not entitled to a refund of any amount deducted from retired pay, except in the case of a refund authorized by section 1450(e) of this title or in the case of a deduction made through administrative error.

	f.  The Discussion and Conclusions portion of the ROP shows the ABCMR analyst provided the following rationale for consideration by the Board:

		(1)  The 2005 applicant asserted, in effect, that his RCSBP election should be corrected because at the time he made his election his son was not eligible for the RCSBP.
		(2)  Absent from the 2005 applicant's military service records is documentary evidence regarding his current marital status (e.g., divorce decree) or any correspondence from the former spouse regarding the RCSBP.

		(3)  The evidence of record confirms that upon receiving his 20 Year Letter in 1995, the 2005 applicant elected "Children only" RCSBP coverage under Option C, as evidenced by the DD Form 1883 he completed at that time.  His election certificate listed one child with a date of birth of 17 November 1976, indicating that his child was over 18 years of age at the time of his RCSBP election.

		(4)  The evidence of record fails to show that the U.S. Army required the applicant to provide proof that the child listed on his DD Form 1883 was eligible for the RCSBP based upon being enrolled in full-time education, as required by the applicable regulatory guidance.

		(5)  The evidence of record shows that the 2005 applicant was not an eligible SBP participant in 1995 because he had no dependent child and no wife.

		(6)  In view of the error on the part of Government officials caused by not following their own regulatory guidance during the 2005 applicant's RCSBP processing, it is appropriate to rectify the resultant error at this time.  Therefore, the 2005 applicant's record concerning his enrollment in the RCSBP should be corrected to reflect no enrollment in the RCSBP.

	g.  The Board Vote portion of the ROP shows the Board reached a unanimous decision to grant full relief.

	h.  The Board Determination/Recommendation portion of the ROP shows that the Board recommended that all Department of the Army records of the 2005 applicant be corrected by amending the 2005 applicant's DD Form 1883, dated 20 April 1995, by:

		(1)  deleting the entry in Item 9c, which indicates "Option C (Immediate coverage)"; and

		(2)  adding an entry in Item 9c, to indicate "Option A (Defer)"; and


		(3)  that as a result of the foregoing correction, the Defense Finance and Accounting Service shall:

* change the 2005 applicant's record to reflect no enrollment in the RCSBP
* stop such deductions from the 2005 applicant's retired pay
* refund to the 2005 applicant all previous deductions.

15.  References:

	a.  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.

	b.  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: 

		(1)  Option A:  elect to decline enrollment and choose at age 60 whether to start SBP participation

		(2)  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

		(3)  Option C:  elect that a beneficiary receive an annuity immediately upon their death if before age 60

16.  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 normally 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 had the member died prior to age 60.

17.  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.  

18.  Title 10, U. S. Code, section 1452(b)(3) states, in the case of an RCSBP participant who provided child-only coverage during a period before the participant becomes entitled to receive retired pay, the retired pay of the participant shall be reduced by an amount prescribed to reflect the coverage provided during the period before the participant became eligible for retired pay and is made without regard to whether there is an eligible dependent child during a month for which the reduction is made.

DISCUSSION AND CONCLUSIONS:

1.  The U.S. District Court for the District of Columbia remanded this case and directed the ABCMR to specifically address the Board's previous decision in the cited 2005 case.

2.  While ABCMR decisions do not set precedent, equity requires that similar cases be handled in a similar fashion.  

3.  The applicant's case is distinguishable because it is evident that in the cited 2005 case the ABCMR erroneously based the rationale for granting the requested relief on the presumption that there was a governmental obligation to require RCSPB participants to provide documentary evidence of eligibility for dependents when making an election for participation in the SBP.  Given this incorrect premise, the Board consequently granted full relief and as a result, the 2005 applicant received a windfall decision.

4.  Although the characteristics of the applicant's case are similar, it is distinguishable from the 2005 cited case because there has been no error or injustice in the application and enforcement of established policies or laws on the part of the Army.  Applicant’s case therefore a different result. 

      a.  Applicant has cited no federal law or regulation (and the Board has likewise been unable to discover any) requiring an RCSBP participant to submit documentary evidence, at the time the RCSBP beneficiary selection is made, substantiating that the individual selected as a beneficiary on the RCSBP form meets eligibility requirements.  
      
      b. Furthermore, applicant’s citations to Arizona law are not applicable to this case. Applicant has cited no authority, nor can this Board find any, indicating that state law should be considered as controlling authority, or even persuasive authority, when determining whether a child beneficiary meets dependency requirements for purposes of the RCSBP program.   

5  Notwithstanding the errors in the cited case, in the applicant's case, evidence clearly shows the applicant was single and indicated that he had a dependent child when he completed his DD Form 1883 on 31 October 1997 and elected to participate in the RCSBP for child only coverage.  It is also clear that his child, listed as Lxxxx, was born on 4 March 1979 and was 18 years and 7 months of age at the time the applicant made his election.

6.  Applicant himself has acknowledged that his daughter was confined to a wheelchair and that he was of the opinion that she was incapable of self-support, at least until she informed him that she had purchased a home and was living on the residuals of an insurance pay off for the accident that had caused her medical condition.  His daughter therefore appeared to be an eligible RCSBP beneficiary, and it is reasonable to assume applicant considered her to be an eligible beneficiary at the time he chose her as the RCSBP sole beneficiary.  Although he contends that he was coerced by a PSNCO to list his daughter as an eligible beneficiary, he has provided no corroborating evidence in support of this allegation.  By completing the DD Form 1883 and authenticating it with his signature, applicant affirmatively made his daughter an eligible beneficiary and acknowledged that he understood the decision he made.

7.  There is no regulatory or statutory requirement to provide documentary evidence of dependency when making an election for SBP participation so, his DD Form 1883 was accepted by the Army at face value.  Additionally, the fact that the applicant's daughter was deeded a real property purchased for the amount of "Ten Dollars" does not in and of itself establish that she was or is capable of self-support.  Additionally, noticeably absent from the record is any written statement from the daughter proclaiming that she is financially independent of the applicant.  Therefore, his claim that she was, or is, an ineligible dependent is unsubstantiated.

8.  It is important to note that the applicant received the benefit of his RCSBP election.  Had the applicant died and his daughter had been a full-time student she would have been eligible to receive the SBP annuity upon his death until she turned 22 years of age on 4 March 2001, irrespective of whether she was or was not incapable of self-support.  If she was incapable of self-support, his daughter would have been eligible to receive the annuity upon his death until the present day if at that time of applicant’s death she presented evidence that certified her disability was permanent.  There is no requirement to supply evidence of a disability or fulltime school enrollment at the time child only RCSBP is elected (emphasis added).  It is for the annuitant to provide current evidence of his/her entitlement upon application for the annuity after the FSM's death.

9.  The applicant cites to 10 U.S.C. § 1447 for the proposition that a child must live with a parent in a regular parent-child relationship in order to be deemed an eligible beneficiary.  But the applicant has misapprehended the statute.  The "parent-child relationship" requirement applies only to stepchildren, foster children, or recognized natural children.  Because the applicant’s daughter is his biological offspring born during marriage, this particular requirement is inapplicable.  See 10 U.S.C. § 1447 (11)(A)(iii).

10.  By making the elections that are currently chronicled on his DD Form 1833, the applicant obligated the government to treat his daughter as a bona fide RCSBP beneficiary, which it did.  The applicant incurred certain obligations (premium deductions) and benefits (coverage for his daughter) as a result of his election.  But the government also incurred obligations as a result of the election, obligations that the government appears to have met and satisfied.  Thus, applicant cannot claim an injustice in this case nor can he claim he was treated inequitably.   

11.  Following his marriage to his spouse in December 2004 the applicant took no action with regard to SBP until he applied for receipt of Retired Pay in September 2011.

12.  When the applicant rendered and signed the DD Form 1883 in 1997, it clearly stated only Option A afforded him an opportunity to defer making an election until reaching age 60.  By law, Option C did not give him that right.  In view of the fact that he had already made an RCSBP election he was not eligible to make a new election once he turned age 60.  Therefore, when he submitted his application for retired pay he indicated he was married and elected spouse SBP coverage, he did so despite being fully aware that Option C did not allow him to make an election at age 60.

13.  There is no evidence suggesting the applicant's SBP processing was improper or inequitable, or that the previous decisions of the ABCMR pertaining to his specific case were arbitrary or capricious.  These decisions were clearly supported by the available evidence of record and by the absence of compelling independent evidence provided by the applicant.  There is no evidence of an error or injustice.



14. Applicant's case is distinguishable from the cited case for the following reasons. 

      a.  First, the Board in the cited case opined that "the evidence of record shows that the applicant was not an eligible SBP participant in 1995 because he had no dependent child and no wife." (See cited case, para. 5, p. 5.)  But in applicant’s case, the record does not support such a conclusion. In fact, the opposite is true in this case because the record supports the conclusion that applicant did in fact have a dependent child.  The evidence supporting this conclusion is that (1) the selected beneficiary was undeniably applicant’s biological daughter; (2) applicant enjoyed sole legal custody of the daughter under the terms of a divorce decree, although it appears his ex-spouse violated that decree; and (3) the daughter undeniably was injured in a car accident which significantly limited her physical mobility, thus raising the inference she was, at least to some extent, incapacitated.  Also significant is the fact that the applicant now acknowledges that he and the Personnel Office NCO discussed his daughter’s injuries and her disability before he selected her as his sole beneficiary.  It is therefore reasonable to conclude that, at the time he made the election, applicant knew he had daughter, knew that a court had awarded him sole custody, and knew that she had suffered significant injuries in a car accident.  Based upon that knowledge, applicant rationally chose his daughter as his SBP beneficiary. In contrast to the 2005 cited case, the record in this case contains ample evidence that applicant did in fact have a dependent daughter and that he made the rational and informed choice to designate her as an eligible SBP beneficiary.  
      
      b.  Second, the Board in the cited case determined that "error on the part of the Government officials caused by not following their own regulatory guidance during the RCSBP processing" was a reason to "rectify the resultant error."  (See cited case, para. 6, p. 5.)  But unlike the cited case, applicant has cited no regulatory, statutory or administrative guidance that government officials failed to follow when processing his RCSBP application.  Likewise, the Board itself has been unable to find any such guidance.  Given the perceived processing errors in the cited case, and the absence of any such errors in this case, it is apparent the two situations are markedly and demonstrably different.  Consequently, the cited case need not dictate the outcome in applicant's case.

      c.  In light of these dissimilarities, the cited case is distinguishable from applicant's case and therefore does not serve as controlling or persuasive precedent.    

15.  Based on all of the foregoing and the fact that the applicant has not provided any new or compelling evidence that was not previously considered by the Board, there is no basis to amend the previous decisions of the ABCMR.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120015283 on 19 March 2013 or in Docket Number AR20130015593 on 28 May 2014.



      _______ _   _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.


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