IN THE CASE OF: BOARD DATE: 28 October 2010 DOCKET NUMBER: AR20100009413 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 military records be corrected by changing his Reserve Component Survivor Benefit Plan (RCSBP) election from children only to spouse coverage. 2. The applicant states: * He did a change of record with his unit clerk in November 2000 but for some reason the clerk did not send it forward * He got married in September 2000 3. The applicant provides: * Retiree Account Statement CONSIDERATION OF EVIDENCE: 1. The applicant was born on 30 July 1949. Having prior active and inactive service, the applicant enlisted in the Mississippi Army National Guard on 6 May 1986. 2. On 18 January 1995, the applicant received his notification of eligibility for retired pay at age 60 (his 20-year letter). 3. The applicant's DD Form 1833 (SBP Election Certificate), dated 4 June 1995, shows he enrolled in the RCSBP for children only coverage, option C, full base amount. Section II of this form stated, "IMPORTANT: The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision. Please consider your decision and its effect very carefully.” This form also shows he was not married at the time. 4. The applicant was honorably discharged from the Mississippi Army National Guard on 27 May 2009 and transferred to the Retired Reserve 5. The applicant married in September 2000. 6. The applicant turned age 60 on 30 July 2009. 7. The applicant provided a copy of his Retiree Account Statement, dated 1 April 2010, which shows he has children only SBP coverage. 8. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 9. 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. 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. They cannot cancel SBP participation or change options they had in RCSBP, and RCSBP coverage automatically rolls into SBP coverage. 10. 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 one year after the date on which that person marries or acquires that dependent child. 11. The Defense Finance and Accounting Service (DFAS) interprets the first part of Title 10, U. S. Code, section 1448(a)(5) to mean, “…who is not married OR has no dependent child….” 12. Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 to 30 September 2006. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. DISCUSSION AND CONCLUSIONS: 1. The applicant’s DD Form 1883 shows he enrolled in the RCSBP for children only coverage on 4 June 1995. Except as provided for by law, that was an irrevocable election that rolled over into the standard SBP upon reaching age 60. 2. The applicant married in September 2000 and he had one year from his date of marriage to enroll in the RCSBP for spouse coverage. 3. Although the applicant contends he sent the proper paperwork in two months after his marriage, he provided no evidence (letters to DFAS, etc) to support his contention. 4. Since there is no evidence which shows the applicant attempted to enroll in the SBP within one year of his marriage, regrettably, there is no basis for granting the applicant's request. The applicant should continue to read Army Echoes which would alert him to the possibility of enrolling his spouse in the SBP during an Open Enrollment Season, if and when Congress should declare another Open Enrollment Season. 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) AR20100009413 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100009413 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1