RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 November 2007
	DOCKET NUMBER:  AR20070005326 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Donald L. Lewy

Member

Ms. Rea Nuppenau

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, as the widow of a deceased former service member (FSM), requests, in effect, that the FSM's records be corrected to show that he completed an RCSBP (Reserve Component Survivor Benefit Plan) election certificate and that she be granted a Survivor Benefit Plan (SBP) annuity. 

2.  The applicant states, in effect, that the FSM changed his RCSBP beneficiary from child to current spouse when he remarried.  The change was accomplished at Fort Jackson, South Carolina, on 11 May 1998, and was witnessed by a commissioned officer.  The original beneficiary was a child who is now 36 years old and has never been disabled.  DFAS (Defense Finance and Accounting Service) had no record of the change.  She states that it is her belief that the change was not properly processed.  

3.  The applicant provides a copy of the FSM's DA Form 4240 (Data for Payment of Retired Army Personnel), dated 11 May 1998, and a Retiree Account Statement from DFAS in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The FSM was married prior to his appointment as a commissioned officer with two dependents (a wife and child).

2.  The FSM's records show that he was appointed in the South Carolina Army National Guard (SCARNG) as a second lieutenant on 12 July 1965, with prior enlisted service.   His date of birth (DOB) is 3 July 1939.  He was promoted to major (MAJ/O-4) effective 17 June 1979. 

3.  On 12 March 1982, the National Guard Bureau (NGB) notified the FSM that he had completed the required years of service to be eligible for retired pay, on application, at age 60 (20-Year Letter).

4.  The applicant was divorced from his first spouse before August 1983 on an unknown date. 

5.  On 15 August 1983, the FSM completed a DD Form 1883 (SBP Election Certificate) and indicated that he was not married, had two dependent children, and elected "children only coverage."  In item 9c, of his DD Form 1883, he elected Option C (Immediate Coverage).  He also indicated that this was the only election coverage he had submitted under the new SBP.

6.  The FSM was honorably released from the SCARNG on 4 June 1985, under the provision of National Guard Regulation (NGR) 635-100, Paragraph 5a (22), due to failure of selective retention.  He was transferred to the Ready Reserve.

7.  On 9 January 1989, the FSM was honorably discharged from the Ready Reserve.

8.  The FSM remarried on 4 August 1994.

9.  The FSM’s personnel records contain a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 11 May 1998.  Part V (SBP Election), of the DA Form 4240, shows that the FSM indicated that he was married and had no dependent children.  He elected spouse only coverage with full base amount.  This election is not complete in that it does not bear his signature in Part VII to indicate he was properly counseled on benefits afforded under the SBP.  However, he did sign in Part VI, Certification.

10.  On that same day, the FSM completed a DD Form 108 (Application for Retired Pay Benefits), which shows that he applied for retired pay benefits.

11.  The FSM was placed on the Retired List effective 3 July 1999, in the rank of MAJ.

12.  The FSM's Summary of Retirement Points shows he completed 23 years of qualifying service for retirement purposes.

13. The FSM died on 31 December 2006 and his death certificate reflects that he was married to the applicant at that time.

14.  The applicant provided a copy of the FSM’s Retiree Account Statement, with an effective date of 2 December 2006, which was prepared by DFAS, London, Kentucky.  It shows that the SBP coverage type was "children only" and that an RCSBP cost of $3.20 per month was deducted from the FSM’s pay.

15.  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. Elections are made by category, not by name, and are irrevocable except as provided for by law.



16.  Public Law 95-397, the Reserve Component Survivor Benefit Plan (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; or         (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  

17.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted from 1 March 1999 to 29 February 2000.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must have paid monthly premiums starting on the date of enrollment and a one-time, lump sum enrollment premium.    Extensive publicity was given in Army Echoes.  Army Echoes also warned that for a retiree with a high number of years since first being able to enroll a beneficiary in the SBP and whose retired pay was fairly high, the enrollment premium alone could exceed $50.00.

18.  The National Defense Authorization Act for Fiscal Year 2005 established an Open Season to be conducted 1 October 2005 to 30 September 2006.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  The retiree must pay monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant completed an SBP Election Certificate and enrolled in the RCSBP for children coverage only, Option C (Immediate Coverage) on 15 August 1983.  

2.  Prior to his placement on the Retired List, the FSM completed another election on 11 May 1998 and indicated that he was married with no dependent children and elected spouse only coverage, with full base amount.  No other entries were required since he elected "full coverage" for his spouse.  

3.  The FSM died on 31 December 2006.

4.  The evidence revealed by DFAS confirmed that the applicant's RCSBP premium was deducted in December 2006, in the amount of $3.20.  

5.  The applicant alleges that the change of election was completed at Fort Jackson, South Carolina, on 11 May 1998, and was witnessed by a commissioned officer; however, the change was not processed to DFAS and spouse coverage premiums were not collected from the FSM's retired pay.

6.  Having failed to add the applicant as a spouse beneficiary within one year of his remarriage, the applicant was required by law to elect spouse coverage during Open Season to make that beneficiary change to spouse coverage.  There is no evidence that he attempted to enroll the applicant for spouse coverage during an Open Season.

7.  The applicant has not provided sufficient evidence of intent on the part of the FSM.  The only intent clearly proven is that he elected and intended to provide child coverage only.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__rn____  __DL____  __ena___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




____Eric N. Andersen______________
          CHAIRPERSON




INDEX

CASE ID
AR20070005326
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071120
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19990703
DISCHARGE AUTHORITY
AR  140-10.NGR 635-200
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
137
2.

3.

4.

5.

6.