PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 October 2002
	DOCKET NUMBER:   AR2002076598

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
records
	Exhibit B - Military Personnel Records (including
advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP).

3.  The applicant states that they were married in September 1997 and in December 1997 the FSM sent a letter to the Defense Finance and Accounting Service (DFAS) designating her as his SBP beneficiary.  Shortly thereafter he became ill off and on yet he constantly assured her that if anything happened to him she would still receive his retirement pension as long as she did not remarry. 

4.  The FSM’s military records show that he enlisted in the Regular Army on      22 July 1952.  Documents dated 23 March 1972 show that he was married on that date.  He retired on 1 August 1972.  

5.  The FSM and the applicant married on 20 September 1997.  By letter dated 12 December 1997 he stated in part, "I am writing this letter designating my wife M___ A___ W___ as my SBP."  The letter was notarized, possibly because his signature is extremely illegible.

6.  The FSM died on 18 August 2001.  DFAS has no record of the FSM ever enrolling in the SBP.

7.  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. It declared a 12-month Open Season for those members who retired prior to enactment of the law.

8.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  

9.  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 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.  

CONCLUSIONS:

1.  The FSM retired in August 1972, prior to the establishment of the SBP in September 1972.  It appears that he may have been married at the time; however, there is no evidence to show he enrolled in the SBP.  In the absence of evidence showing the FSM was NOT married at the time he first became eligible to participate in the SBP (i.e., during the first Open Season), he effectively declined spouse coverage and his only opportunity to enroll thereafter was  during a subsequent Open Season.  DFAS may not have accepted the FSM's   12 December 1997 letter as a valid election for that reason.

2.  The FSM should have realized that no SBP premiums were being deducted from his retired pay and raised a question concerning his actual enrollment.  It is recognized, however, that the FSM became ill after his marriage in 1997.  It appears reasonable to believe that if he had understood that his December 1997 request for enrollment had not been valid then he would have attempted to enroll in the SBP during the 1999 - 2000 Open Season.  It would be equitable to show that he requested to enroll in the SBP for spouse coverage on 1 March 1999.  He would have met the two-year survivability requirement prior to his death in August 2001.

3.  In view of the foregoing, the FSM’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the FSM enrolled in the SBP for spouse coverage, full base amount on 1 March 1999.

2.  That the applicant be advised that DFAS will be instructed to collect any SBP costs due.  

3.  That the applicant be paid an annuity based upon the FSM’s election to participate in the SBP retroactive to 18 August 2001, the date of his death.

BOARD VOTE:  

__RJW__  __RWA__  __JTM__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___   Raymond J. Wagner     _
		           CHAIRPERSON

INDEX

CASE ID	AR2002076598	
SUFFIX		
RECON		
DATE BOARDED	2002/10/10	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	FULL GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.