RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	4 March 2008  
	DOCKET NUMBER:  AR20070006862 


	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



Analyst


The following members, a quorum, were present:




Chairperson



Member



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 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 coverage.

2.  The applicant states, in effect, that she and the FSM in December 2004, signed paperwork electing the SBP, spouse coverage.  After her husband died, she found out that DFAS shows coverage for child only instead of the spouse election.   

3.  The applicant provides a copy of the DD Form 2656-7 (Verification for Survivor Annuity); W-4P (Withholding Certificate for Pension or Annuity Payments); a Direct Deposit Sign-Up Form; a DD Form 2656 (Data For Payment of Retired Personnel); a License and Certificate For Marriage of the state of South Carolina, Dorchester County; and a State of South Carolina Department of Health and Environmental Control Certificate of Death, States File Number 0711145.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military service record shows that he was born on 23 December 1944.  He enlisted in the Army National Guard on 7 September 1965.  The FSM’s service was continuous through reenlistment and extensions.  The highest grade he attained was master sergeant/pay grade E-8.

2.  On 18 June 1990, the applicant received Notification of Eligibility for Retired Pay at age 60.  On 29 June 1990, the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate).  In this document, the applicant indicated that he was not married but had two dependent children.  Further, based on the FSM not having a spouse at the time, he elected SBP (children only), full base amount, option C (Immediate Coverage).  

3.  On 5 June 1991, the FSM was honorably retired from the Army National Guard in the rank of Master Sergeant/pay grade E-8 after completing
21 qualifying years towards a non-regular retirement.     

4.  On 3 July 1992, the applicant and FSM were married.  There is no information or documentation that indicates the FSM applied for RCSBP spouse coverage for his wife subsequent to being married or within the required one year of marriage. On 16 April 2007, the FSM passed away at the age of 62.  The applicant submits a copy of the DD Form 2656-7 (Verification for Survivor Annuity) and a DD Form 2656, dated 22 January 2004.

5.  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 60th birthday; (c) elect that a beneficiary receive an annuity immediately upon their death, if before age 60.  RCSBP/SBP elections are made by category, and beneficiaries are not designated by name.  Normally, an election, once made, is irrevocable except as provided for by law.

6.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that she should receive an SBP annuity as the widow of the deceased FSM.

2.  The RCSBP is not an entitlement and coverage is not automatic.  Participation in the RCSBP must be elected and premiums paid similar to those paid to obtain life insurance coverage.

3.  Upon receipt of retired pay, DFAS generates a Retiree Account Statement pertaining to the retiree's monthly pay account.  This document provides a summary of the retiree's pay account and describes the pay items and amounts for deductions and withholdings.  For retirees participating in the RCSBP, a line item for the SBP, along with the cost to the retiree, appears on the retiree's account statement, which allows this information to be easily identified by the retiree.

4.  By law, a member who was not married upon becoming eligible to participate in the RCSBP, but who later marries may elect to participate in the RCSBP.  However, a written election must be made, signed by the person making the election, and must be received by the Army within one year of the date of marriage.  In this case, the FSM and applicant were married on 13 June 1992.  As a result, the law required the FSM to submit a written RCSBP election by 
14 June 1993 in order for the applicant to be eligible for RCSBP benefits.  

5.  The evidence provided by the applicant fails to show the FSM attempted to notify DFAS and enroll in the RCSBP within one year of his marriage to the applicant.  The FSM died on 16 April 2007.  Lacking any evidence to confirm it was the FSM’s intent to enroll in the RCSBP within the one year period after his marriage allotted for by the governing law, there is an insufficient evidentiary basis to support granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__A_____  ___WDP_  __JP____  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.





_______
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.