IN THE CASE OF: BOARD DATE: 13 December 2016 DOCKET NUMBER: AR20150016238 BOARD VOTE: ___x_____ __x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 13 December 2016 DOCKET NUMBER: AR20150016238 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 the applicant made a spouse Reserve Component Survivor Benefit Plan (RCSBP) election (Option B, Child and Spouse) within 1 year of his marriage (not later than 16 October 1998) * showing the Army timely received, accepted and processed this RCSBP election ___________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. IN THE CASE OF: BOARD DATE: 13 December 2016 DOCKET NUMBER: AR20150016238 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 correction of his DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) to show he elected Reserve Component SBP (RCSBP) for "spouse" vice "children only." 2. The applicant states during his retirement briefing, he noticed that the proper paperwork was missing for spouse coverage. He submitted a DD Form 2656-6 (SBP Election Change Certificate) but the U.S. Army Human Resources Command (HRC) denied his request. He completed the paperwork in 1997, identifying his spouse to receive any RCSBP benefits. He believes the administrative error was caused by changes in full-time staff and the unit moving. 3. The applicant provides: * email from a Retirement Services Officer to HRC * DD Form 2656-6 * marriage certificate * 20-Year Letter * DD Form 1883 CONSIDERATION OF EVIDENCE: 1. The applicant was born on June 1957. He had prior enlisted service in the Regular Army and prior enlisted and warrant officer service in the Missouri Army National Guard (MOARNG). 2. He was appointed as a Reserve commissioned officer of the MOARNG and executed an oath of office on 9 September 1989. He was promoted to captain in October 1994. 3. On 5 May 1997, the MOARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 4. On 26 August 1997, the applicant completed a DD Form 1883. He indicated that he was not married but he had a dependent child, a daughter who was born in July 1980. He elected "children only" RCSBP coverage, Option C (immediate coverage), based on the full amount. 5. On 17 October 1997, the applicant married his current spouse. 6. There is no indication the applicant requested a change to his RCSBP coverage with one year of his marriage. 7. He served in a variety of stateside or overseas assignments and he was promoted to lieutenant colonel (LTC). 8. On 3 September 2015, MOARNG published Orders 246-431 transferring him to the Retired Reserve, effective 31 October 2015. 9. On 17 September 2015, the applicant submitted a DD Form 2656-6 requesting a change in his RCSBP election from children only to spouse based on his marriage. 10. On 22 September 2015, HRC notified the Retirement Services Officer that the applicant had one year from the date of the action (marriage) to change his election. 11. He was honorably discharged from the ARNG on 31 October 2015 and transferred to the Retired Reserve. His NGB Form 22 (Report of Separation and Record of Service) shows he completed over 39 years of service for pay. REFERENCES: 1. 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. 2. 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 3. 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. 4. Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. 5. 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. DISCUSSION: 1. The applicant was issued his 20-Year Letter in May 1997. Upon receipt, he completed a DD Form 1883 in August 1997 and indicated he was not married at the time. He elected RCSBP coverage for his child under Option C, based on the full amount. When he completed this form, he acknowledged the decision he made with respect to participation in this SBP is a permanent irrevocable decision and he should consider his decision and its effect very carefully. 2. Shortly after completing this form, in October 1997, he and his spouse Shirley were married, and despite having completed an RCSBP election a few months before, there is no evidence or corroboration supporting his claim that he made an election to change his RCSBP coverage within one year of his marriage. 3. The applicant married his spouse in October 1997. The law requires that if the applicant wanted to enroll his spouse in the RCSBP, he would have had to make a written and signed election, and received by the Secretary concerned within one year after the date on which that person marries. Beyond the applicant’s claim to have submitted a change request, the evidence of record does not show the applicant submitted such election within one year of his marriage. Applying a presumption of regularity in the conducting of government affairs in this case, one can presume that if a request had been properly submitted it would have been received and processed. 4. Additionally, the law established an Open Season to be conducted from 1 October 2005 through 30 September 2006, which effectively gave the applicant an opportunity to enroll his spouse in the RCSBP. There is no evidence the applicant took any action during this Open Season. 5. Shortly before he transferred to the Retired Reserve, in September 2015, he made an election to change his coverage from "children only" to "spouse" coverage based on his 1997 marriage. However, this was an invalid election because it was not submitted within one year of his marriage and there was no Open Season to make such an election. 6. The applicant turns 60 in June 2017. RCSBP participants do not make a new election once they turn age 60. Their RCSBP election rolls over into the standard SBP. Even though the applicant’s child is no longer a dependent, once 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. 7. The irrevocability of choosing option B or C under the member’s RCSBP election is intended to ensure an applicant who elects and receives pre-retirement-pay coverage (while not making payments) pays for that coverage after they start receiving retired pay. They do this by paying the normal RCSBP rate plus an additional amount to cover the pre-retirement coverage. 8. The statute is intended to keep individuals from benefitting from the pre-retirement coverage and then opting out rather than to limit who can opt in at retirement age. It is antithetical to the purpose of the statute to believe that the intended result is that had the applicant not had a child in 1997, he could have added coverage for his spouse upon reaching age 60, but since he had a child and chose child coverage, he cannot. The statute?s intent is to direct continued inclusion of coverage at age 60 rather than prohibit inclusion. A positive result would be congruent with the intent of the statute and the evidence presented. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016238 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016238 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2