RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 December 2003
         DOCKET NUMBER: AR2003088023


         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Shirley Powell		Member
Mr. Samuel A. Crumpler		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse and children coverage, full base amount, option C and applied for retired pay.

2. The applicant states that the FSM was ill and not able to complete the forms without assistance. He indicated he was single [on the DD Form 2656] because they were separated so he thought that was the correct way to file. The reason he wanted his children to receive his benefits is because they were his beneficiaries.

3. The applicant provides a DD Form 2656 (Data for Payment of Retired Personnel) dated 14 December 2001; their marriage certificate, a VA Form 29-8286 (Servicemen's Group Life Insurance Election); the FSM's discharge orders; and the FSM's death certificate.

CONSIDERATION OF EVIDENCE:

1. The FSM was born on 28 August 1938. After having had prior service, he enlisted in the Georgia Army National Guard on 30 September 1976. He and the applicant married on 18 January 1991.

2. On 5 October 1991, the FSM completed a VA Form 29-8286 and made his daughter Cynthia the principal beneficiary and his son Herman L. the contingent beneficiary of his military insurance.

3. Records at the U. S. Army Human Resources Command – St. Louis (USAHRC – STL) indicate the FSM's notification of eligibility for retired pay at age 60 (his 20-year letter) was issued on 7 October 1992. His Survivor Benefit Plan Election Certificate, DD Form 1883, is not available. Records at Transitions and Separations Branch, USAHRC – STL indicated the FSM enrolled in the RCSBP under option C; however, the category of coverage was not indicated.

4. The FSM turned age 60 on 28 August 1998. He apparently did not apply for retired pay at that time.

5. On 14 December 2001, the FSM completed a DD Form 2656. This is the form used to apply for retired pay. In item 13, he listed his daughter Cynthia and his son Herman L. as the designated beneficiaries for unpaid retired pay. In item 14, he listed his marital status as "single." In items 26 and 28, he elected SBP coverage for his daughter as an insurable interest beneficiary. The spousal concurrence section, items 30 and 31, was not completed.

6. On 26 December 2001, the FSM died. The death certificate shows he was married to the applicant.

7. 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. A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member.

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 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. A member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP. Prior to 1 January 2001, failure to make a valid election within the given time frame resulted in a default election of option A.

9. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required the spouse's written concurrence for a retiring member's election that provides less than maximum spouse coverage.

10. Title 10, U. S. Code, section 1448(a)(3)(B) states that a married person who elects to provide a reserve component annuity may not without the concurrence of the person's spouse elect to provide an annuity for the person's spouse at less than the maximum level or to provide an annuity for a dependent child but not for the person's spouse.

11. Title 10, U. S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and the last eight years of qualifying service have been performed while a member of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1. Records at USAHRC-STL show the FSM enrolled in the RCSBP but the type of coverage is not indicated.

2. Based upon the information and documents provided by the applicant, it appears the FSM may have made an invalid RCSBP election when he received his 20-year letter. A year earlier he had made two of his children, not his spouse, the beneficiaries for his military insurance. The applicant stated (in response to a question as to why the FSM indicated he was single on the DD Form 2656 and listed his children as the beneficiaries for the standard SBP) that the FSM wanted his children to receive his benefits. Based on this information, it is presumed that the FSM also elected children-only coverage and, based on the evidence of his later DD Form 2656, did so without obtaining the concurrence of his spouse (the applicant) when he enrolled in the RCSBP. Therefore, such an election would have been invalid and his election would have defaulted to option A (deferred until age 60).

3. The FSM turned age 60 in August 1998. Although he never applied for retired pay (at least not until he completed the DD Form 2656 in December 2001), he honorably served the Army for over 20 years and earned his retired pay. It would be equitable to show he applied for retired pay early enough to be effective when he turned age 60.

4. When the FSM completed the DD Form 2656, he listed his marital status as single and indicated his intent to enroll in the standard SBP with his daughter as an insurable interest beneficiary. However, that was an invalid election. He was married to the applicant at the time and she did not give her consent to his election. Since she did not give her consent, such an SBP election would have automatically defaulted to spouse coverage, full base amount.

5. The FSM indicated on the DD Form 2656 that his daughter Cynthia and son Herman L. would be the beneficiaries for his unpaid retired pay. Had his DD Form 2656 been accepted for processing, that designation would have been valid.

6. The SBP must be paid for. Since premiums for the SBP would have been paid out of the FSM's retired pay, back due premiums should be taken out of his back due retired pay.

BOARD VOTE:

__jns___ __sp____ _sac____ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

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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:

a. showing that the FSM applied for retired pay by completing a DD Form 2656 on 1 July 1998 and designated his daughter Cynthia and his son Herman L. as the beneficiaries of his unpaid retired pay and elected spouse-only SBP coverage, full base amount;

b. showing that the FSM's DD Form 2656 was received in and processed by the appropriate office in a timely manner;

c. paying the FSM's daughter Cynthia and his son Herman L. his unpaid retired pay; and

d. paying the applicant the SBP annuity retroactive to the date of the FSM's death.

2. That the Defense Finance and Accounting Service be instructed to collect any SBP costs due out of the FSM's back due retired pay.




                  __John N. Slone_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088023
SUFFIX
RECON
DATE BOARDED	20031216
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	137.00
2.
3.
4.
5.
6.