ABCMR Proceedings (cont)                                                        AR2002083250

PROCEEDINGS

	IN THE CASE OF 

	BOARD DATE:            17 June 2003                    
	DOCKET NUMBER:    AR2002083250

	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
| Mr. Joseph A. Adriance | | Analyst

  The following members, a quorum, were present:

| Mr. Fred N. Eichorn | | Chairperson
| Mr. Hubert O. Fry | | Member
| Ms. Marla J. Troup | | 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, in effect, that she be deemed the beneficiary to receive the Reserve Component Survivor Benefit Plan (RCSBP) benefits left by her deceased husband, a Former Service Member (FSM).

3.  The applicant states, in effect, that she is the rightful beneficiary of all retirement and other benefits of her deceased husband.  She claims that the enclosed documents, which include the death certificate of her husband’s mother, a marriage certificate confirming her marriage to the deceased FSM, and her deceased husband’s death certificate, which were all submitted to the Army Reserve Personnel Command (ARPERSCOM) clearly identify her as the intended beneficiary of the deceased FSM.  She claims that it is her belief that these documents clearly show that it was her deceased husband’s intent to designate her as his beneficiary. 

4.  The FSM’s military records show that on 4 September 1996, he was notified that he had completed the required years of service and was therefore eligible to receive retired pay at age 60.  In this letter of notification, he was also informed that he had 90 calendar days to submit his RCSBP election certificate.  He was also advised that if he failed to submit this election form, he would not be entitled to RCSBP coverage until he applied for retired pay at age 60.  The FSM submitted an RCSBP election form at the time, and he elected his mother as beneficiary under insurable interest provisions of the RCSBP program.    

5.  On 6 September 2000, Orders Number 00-250-019, issued by Headquarters, 84^th Division, Milwaukee, Wisconsin, directed the FSM’s release from his active Reserve status assignment and his transfer to the Retired Reserve, effective 
1 October 2000.  

6.  The applicant provides a death certificate confirming that the FSM’s mother, who had been designated as the beneficiary of his RCSBP benefits died on 
4 December 1997.  She also provides a copy of her marriage certificate, which confirms she married the FSM on 8 May 2000.  Finally, she provides a death certificate confirming that the FSM died on 7 October 2001.  

7.  In connection with the processing of this case, an advisory opinion was requested of and received from the Supervisor, Retirements and Annuities Branch, ARPERSCOM.  This official states that a review of the deceased FSM’s record resulted in a determination that the FSM did not enroll his wife in the RCSBP as his beneficiary.  The record revealed that the FSM enrolled his mother as the RCSBP beneficiary as an insurable interest, and his mother died on 4 December 1997.  

8.  This ARPERSCOM official further states that the applicant claims that her husband intended to enroll her in the RCSBP as his beneficiary as part of his application for retired pay at age sixty.  However, such enrollment commences when the soldier attains age sixty and is retired with pay.  Prior to attaining age sixty, Reserve soldiers are authorized coverage under the RCSBP, but the FSM died prior to attaining age 60 without changing his RCSBP beneficiary.  Thus, the applicant is not entitled to receive the RCSBP annuity. 

9.  The applicant was provided a copy of the ARPERSCOM advisory opinion and responded on 10 April 2003.  In support of her request, the applicant provided documents that confirm that at the time her deceased husband was transferred to the Retired Reserve (some four years after the receipt of his twenty-year letter, four months after his marriage to the applicant, thirteen months prior to his death, and twenty months prior to what would have been his sixtieth birthday).  A Data for Payment of Retired Personnel (DD Form 2656) is provided that was completed by the FSM on 17 September 2000.  In this document, the FSM indicated his intent to elect spouse coverage in Section V (Designation of Beneficiaries for Unpaid Retired Pay), where he designated the applicant as his beneficiary.  In Section IX (Survivor Benefit Plan Election), he elected spouse only coverage and coverage based on full gross pay without supplemental SBP, and he designated the applicant as his SBP beneficiary in Item 28.  The applicant claims that it is her belief that this document clearly establishes her deceased husband’s intent to provide her SBP protection, and she states that the DD Form 2656 was hand delivered to ARPERSCOM by the FSM and lost. 

10.  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 60^th birthday; (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.

11.  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 RCSBP.  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.  

12.  Title 10, U. S. Code, section 1448(b) provides that a person who is not married and does not have a dependent child upon becoming eligible to participate in the RCSBP may elect to provide an annuity to a natural person with an insurable interest in that person.  An election for a beneficiary who is not the former spouse of the person providing the annuity may be terminated.

CONCLUSIONS:

1.  The evidence of record confirms that the deceased FSM elected RCSBP coverage for his mother as an insurable interest in connection with being notified that he was eligible for retirement at age 60.  He elected option B, which provided for the RCSBP annuity to begin on what would have been his sixtieth birthday.  Subsequent to this election, the FSM’s mother died in 1997, he married the applicant in 2000, and he died in 2001.  	

2.  Although the ARPERSCOM advisory opinion indicates that FSM did not elect RCSBP spouse coverage for the applicant within a year of their marriage, the FSM made his intent to elect spouse coverage clear when he completed a 
DA Form 2656 on 17 September 2000, a little over four months after his marriage to the applicant. This document was hand delivered to ARPERSCOM and lost.  In this form, the applicant was listed as the beneficiary for her husband’s unpaid retired pay, and it shows that the FSM elected spouse only SBP coverage for his spouse, the applicant.  

3.  The DD Form 2656 completed by the FSM was the wrong form to use given his status as a gray area retiree.  Instead, he should have completed a DD Form 1883 (Survivor Benefit Plan Election Certificate) with his choices being to decline coverage, select immediate coverage, or select coverage beginning on would have been his sixtieth birthday, or to simply inform the Government of his desire to change his initial RCSBP election from his mother to his wife.  

4.  Notwithstanding his use of the incorrect form, the Board finds the DD Form 2656 the FSM completed on 17 September 2000, well within the one year window he had to elect SBP coverage for his new wife under the law, clearly establishes his intent to elect RCSBP coverage for his wife upon his receiving retired pay.  Given he was just seven months short of reaching age 60 at the time of his death and had previously participated in the RCSBP program, the Board concludes that it would serve the interest of equity to honor the FSM’s flawed request for RCSBP coverage for the applicant as he clearly intended.  

5.  In view of the facts of this case, the Board concludes that it would serve the interest of justice and equity to correct the FSM’s record to show he designated his wife as the RCSBP beneficiary on 17 September 2000, a little over four months after their 8 May 2000 marriage, with option B coverage.  In addition, the Board finds that it would be appropriate to provide the applicant any back RCSBP annuities due since 6 May 2002, which would have been the FSM’s sixtieth birthday. 

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the FSM designated his wife, as his RCSBP beneficiary on 
17 September 2000; and by providing the individual concerned all back RCSBP annuities due since 6 May 2002, which would have been the FSM’s sixtieth birthday, minus any premiums due.

BOARD VOTE:  

FE____  __HOF___  __MT_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Fred N. Eichorn
	                                               CHAIRPERSON

INDEX

CASE ID | AR2002083250
SUFFIX |
RECON |
DATE BOARDED | 2003/06/17
TYPE OF DISCHARGE | HD
DATE OF DISCHARGE | 2000/10/01
DISCHARGE AUTHORITY | AR 140-10
DISCHARGE REASON | Retired Reserve
BOARD DECISION | GRANT
REVIEW AUTHORITY |
ISSUES         1.  346 | 137.0000
2. |
3. |
4. |
5. |
6. |