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Decision Text

ARMY | BCMR | CY1997 | 9707036
Original file (9707036.rtf) Auto-classification: Approved
2. The applicant requests that his Survivor Benefit Plan (SBP) election of “child only” be changed to “spouse” coverage.
3. The applicant’s military records show he was born on 12 October 1934. He was unmarried when, on 11 September 1979, he made an election under the Reserve Component SBP (RCSBP), choosing “child only, Option C, full retired pay.”

4. Upon applying for retired pay in April 1994, the applicant’s SBP election of “I decline coverage” was invalid since he previously participated in RCSBP for his son. However, he was not barred from future spouse coverage.

5. On 26 June 1994, the applicant got married. By law, he had one year from date of marriage to enroll his spouse in the SBP.

6. On 12 October 1994, he retired from the National Guard on 12 October 1994, upon reaching age 60, in pay grade E-7, after more than 40 years of creditable federal service.

7. Public Law 92-245, the SBP, enacted 21 September 1972, 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. Changes in SBP options are not authorized except in specific instances or authorized by law.

8. 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 (and participate in SBP), 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 60 th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive).

9. In the processing of this case, a staff advisory opinion was requested from the Headquarters Army Retirement Services Office. The Retirement Services Office recommended that the applicant’s SBP be changed to “spouse and child” request be approved, retroactive to 13 September 1994, the date of the applicant’s divorce and that if any SBP cost refund has been paid to the applicant based on ineligible spouse coverage, it should be collected. The applicant continued to pay SBP costs after his divorce, assuming that if no written request to delete her from coverage was made, she would remain an eligible beneficiary. The applicant was properly briefed at his retirement that elections are permanent and irrevocable, but probably misunderstood that that is based upon a beneficiary remaining eligible in the category in which elected. The applicant’s ex-wife no longer was eligible, as a spouse, upon the date of divorce. The Retirement Services Office also recommended that the switched coverage should include “children” also, even if there are currently none eligible. This would enable the applicant to provide SBP coverage for any children he may later acquire through remarriage or for any other reason.
CONCLUSIONS :

1. Although the applicant failed to request “former spouse coverage” within the one year window required by law, it was obviously his wish to comply with the state court’s ordered former spouse coverage.

2. In view of the foregoing, it would be appropriate to correct the records as recommended below.

 RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the applicant applied for “former spouse and children” coverage upon his divorce on 13 September 1994.

2. That a complete audit of the applicant’s account be conducted to determine if any SBP cost refund has been paid to the applicant based on ineligible spouse coverage and, if so, to collect it.

 BOARD VOTE :
GRANT AS STATED IN RECOMMENDATION

 GRANT FORMAL HEARING

 DENY APPLICATION
CHAIRPERSON

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