IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20070018429 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the records of her deceased husband, a former service member (FSM) be corrected to show that he elected to change his Survivor Benefit Plan (SBP) coverage from "None" 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 1995 when he was unmarried, electing no coverage since he was single at the time.  She further adds that after she was married to the FSM in 1997, he completed the DD Form 1883, changing coverage to her as his spouse.

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

	a.  DD Form 1883, dated 12 September 1997.

	b.  Certificate of Marriage, dated 8 July 1997.

	c.  The FSM's Certificate of death, dated 31 July 2007.

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show that he was born on 2 January 1953.  He enlisted in the Alabama Army National Guard (ALARNG) on 7 October 1972 and subsequently had a series of reenlistments in the ALARNG with periodic calls to active duty for training and/or in support of contingency operations.  

2.  On 21 November 1995, the Alabama State Military Department, Office of the Adjutant General, Montgomery, Alabama, 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 8 December 1995, the FSM completed the DD Form 1883.  In Section II (Marital, Dependency, and Election Status), he indicated that he was unmarried and had dependent children.  He placed an "X" in the "None" block of Item 8e and elected Option A (Defer Coverage).  He also listed his two children in Item 15 (Unmarried Dependent Children Under 22).

4.  On 8 July 1997, the FSM married the applicant.  On 12 September 1997, the FSM submitted a new DD Form 1883 and indicated that he was married but did not have dependent children.  He elected to participate in the SBP with “Spouse only” full coverage under Option C (Immediate Coverage). 

5.  On 18 January 2005, HRC-Alexandria, Virginia, informed the applicant by memorandum that his request for release from active duty (REFRAD) was approved.  It further directed that he be transferred to the Retired Reserve.  

6.  On 3 March 2005, Joint Forces Headquarters, ALARNG, Montgomery, Alabama, published Orders 062-510, ordering the FSM's honorable discharge from the Army National Guard and his transfer to the Retired Reserve.

7.  On 31 July 2007, the applicant died.  He would have turned 60 years old on 2 January 2013.

8.  On 11 October 2007, the applicant was informed by HRC-St. Louis, Missouri, that the FSM's DD Form 1883, dated 12 September 1997, naming her as the beneficiary is not on file.  However, the FSM's records indicate that a copy of the DD Form 1883 is posted to the FSM's interactive Personnel Electronic Records Management System (iPERMS). 

9.  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 60 to provide an annuity for their survivors should they die before reaching age 60.  Elections are made by category, not by name.  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 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).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she is entitled to receive SBP benefits based on the death of her spouse, a FSM. 

2.  When the FSM received his 20-Year Letter on 21 November 1995, the FSM completed the DD Form 1883 indicating that he was unmarried and elected to defer SBP coverage.  When the FSM was married on 8 July 1997, 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.

3.  Evidence of record shows that the FSM did in fact complete a new DD Form 1883 electing spouse coverage on 12 September 1997, less than 3 months after his marriage, and submitted the form to the proper custodian.  The SBP form is properly filed in the applicant's records.  It is not clear why the applicant is denied SBP benefits. 

4.  Based on the evidence and information presented by the applicant, together with the evidence of record, applicable laws and regulations, it is concluded that there is sufficient basis for granting relief in this case.  Since the FSM died with spouse SBP coverage in effect, the applicant, his legal spouse at the time of his death, is the lawful beneficiary of his SBP.  Therefore, it would be equitable to correct the FSM's records to show he changed his SBP coverage from no coverage to spouse coverage.

BOARD VOTE:

__xxx___  __xxx___  __xxx___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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 he changed his SBP coverage to spouse coverage on 12 September 1997 and that his request was received and processed by the appropriate office in a timely manner; and

	b.  that the applicant be paid the SBP annuity as a result of the above correction, subject to any deductions for SPB premiums accruing based on the FSM's entry into the program in 1997.



								XXX
      _______________________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080003382



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ABCMR Record of Proceedings (cont)                                         AR20070018429



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