RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 January 2008
	DOCKET NUMBER:  AR20070011157 


	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

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Ms. Ann M. Campbell

Chairperson

Mr. Dean A. Camerella

Member

Mr. Rodney E. Barber

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 her husband's records, a former service member (FSM) be corrected to show that he elected to change his Survivor Benefit Plan (SBP) coverage from "Natural person with insurable interest-mother" to "Spouse only" coverage upon marriage.

2.  The applicant states, in effect, that the FSM completed the DD Form 1883 (Survivor Benefit Plan Election Certificate) in 1994 when he was unmarried, electing his mother as the beneficiary of his SBP benefits.  She further adds that after she was married to the FSM, he completed the DD Form 2656 (Data for Payment of Retired Personnel), changing coverage to his spouse.  She also adds that she was told the DD Form 2656 would supersede the DD Form 1883.  She concludes that when her spouse died, she was denied SBP benefits under Public Law 93-397.

3.  The applicant provided the following documentary evidence in support of her application:

	a.  DD Form 1883, dated 19 July 1994;

	b.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge);

	c.  Certificate of Marriage, dated 9 October 1999;

	d.  The FSM's Certificate of death, dated 10 October 2006;

	e.  The FSM's Mother's Certificate of death, dated 10 April 2003;

	f.  Memorandum, dated 4 October 2006, Human Resources Command (HRC), St. Louis, Missouri, approval of application for retired pay;

	g.  HRC-St. Louis, Missouri, Orders Number P10-690096, dated 4 October 2006, placing the applicant on the Retired List;

	h.  HRC-St Louis, Missouri, Orders P10-690096-R01, amending retirement Order due to FSM's death; and

	i.  Letter, dated 25 April 2007, HRC-St. Louis, Missouri, denying the spouse SBP benefits.

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show that he was born on 13 December 1946.  He was inducted into the Army of the United States on 6 April 1967 and was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group on 4 April 1969.  He later enlisted in the USAR on 28 April 1976 and subsequently had a series of reenlistments in the USAR until 9 September 1994, when he was assigned to the USAR Control Group (Retired).  

2.  On 11 July 1994, the State of Delaware, Department of Military Affairs, Headquarters, Delaware National Guard, Wilmington, Delaware, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.  

3.  On 19 July 1994, the FSM completed his DD Form 1883.  In Section II (Marital, Dependency, and Election Status), he indicated that he was unmarried and did not have dependent children.  He elected to participate in the RCSBP with “Natural person with insurable interest” full coverage under Option C (Immediate Coverage).  He listed his mother as the person who had an insurable interest to him and wanted to receive the annuity.

4.  On 9 October 1999, the FSM married his current spouse.

5.  On 10 April 2003, the FSM's natural person with insurable interest-mother died.

6.  On 4 October 2006, HRC-St. Louis, Missouri, informed the applicant by memorandum that his application for retired pay was approved.  Human Resources Command also published Orders Number P10-690096, also on 4 October 2006, placing the FSM on the Retired List effective 13 December 2006 in the retired grade of sergeant (SGT)/pay grade E-5.

7.  On 10 October 2006, the applicant died.  He would have turned 60 years old on 13 December 2006.

8.  On 25 April 2007, the applicant was informed by memorandum from HRC-St. Louis, Missouri, that the FSM's DD Form 1883, dated 19 July 1994, naming his mother as the beneficiary, was the only form on file.

9.  The FSM's records do not indicate that he submitted a DD Form 2656 to HRC-St. Louis, Missouri.
10.  Title 10, U. S. Code, section 12731(a)(d), states in pertinent part, a Soldier is entitled, upon application, to retired pay computed under section 12739 of this title if the Soldier is at least 60 years of age and has performed at least 20 years of qualifying service while a member of the reserve component of an armed force.  The Secretary concerned shall notify each Soldier who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the Soldier within one year after the Soldier completes that service.  The written communications shall include notice of the elections available to such persons under the SBP, the Supplement SBP and the effect of such elections

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 SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  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.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and not yet retirement eligible to 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 60th birthday; (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 (costs for option C being the more expensive).  Once a member elects either Options B or C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60.







13.  Public Law 108-375, enacted 28 October 2004, established an SBP Open Season from 1 October 2005 through 30 September 2006.  To apply, members were required to complete a DD Form 2656-9, Survivor Benefit Plan (SBP) and Reserve Component Survivor Benefit Plan (RCSBP) Open Enrollment Election.  Elections must have been submitted to the Service designated agent [Director, DFAS-US Military Retired Pay, PO Box 7130, London, KY 40742-7130] indicated in the instructions on DD Form 2656-9.  All elections were required to be postmarked by 30 September 2006.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM is entitled to correction of his records to show he elected to change his RCSBP coverage from natural person with insurable interest-mother coverage to spouse coverage under the SBP.

2.  When he received his 20-Year Letter on 11 July 1994, the FSM completed DD Form 1883 indicating that he was unmarried and desired RCSBP coverage for his mother, with an annuity based upon the full amount of his retired pay, with coverage to begin immediately (Option C).

3.  When the FSM was married on 9 October 1999, by law, he had 1 year to request, in writing, spouse coverage for his wife.  He was required to submit a copy of his marriage certificate upon application.

4.  The only legitimate period during which the FSM could have enrolled his spouse in SBP coverage following the 1-year anniversary of their marriage was during an authorized Open Season.  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 2 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.  

5.  The FSM had a legitimate opportunity to enroll his spouse during the period from 1 October 2005 – 30 September 2006.  He made no effort to do so.  Even if the FSM's records were corrected to show that he enrolled his spouse in the SBP effective 1 October 2005 (the earliest date under the Open Season), by law, he would have had to survive until 30 September 2007 in order for the spouse to qualify.  Unfortunately, the FSM passed away on 10 October 2006, almost a year before the applicant could be vested.

6.  Therefore, considering the evidence and information presented by the FSM (applicant), together with the evidence of record, applicable laws and regulations, it is concluded that there is no basis for granting relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__amc___  __dac___  __reb___  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.




							Ann M. Campbell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070011157
SUFFIX

RECON

DATE BOARDED
20080103
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
137.0000
2.

3.

4.

5.

6.