IN THE CASE OF:	 

	BOARD DATE:	
	DOCKET NUMBER:  AR20080005060 


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 spouse, a former service member (FSM), be corrected to show he elected to change his Reserve Component Survivor Benefit Plan (RCSBP) from "Children only" coverage to "Spouse" coverage.

2.  The applicant states, in effect, that it has now been two and a half years since her husband died and when she dealt with the paperwork she was told all was in order.  She later received a letter, dated 17 May 2006, in which she was notified her request for an SBP annuity had been denied.  She was provided an application to submit to this Board.

3.  In support of her application, the applicant provides a self-authored letter, dated 17 March 2008, to explain processing delays that have occurred over the last two-plus years; a copy of a letter addressed to her from the Chief, Transition and Separations Branch, US Army Human Resources Command, St. Louis, Missouri, dated 22 March 2006; a copy of a letter addressed to the applicant from an Annuity and Retirement Analyst, US Army Reserve Personnel Command, St. Louis, dated 17 May 2006; a copy of letters she sent to the Annuity and Retirement Analyst, US Army Reserve Personnel Command, St. Louis, on 30 June 2006, on 27 August 2006, and on 30 June 2007; a copy of the FSM’s death certificate, dated 9 September 2005; a copy of an Affidavit Regarding Citizenship Status, pertinent to her citizenship, dated 29 September 2005; a copy of a DD Form 1882, Survivor Benefit Plan Election Change, which 

the FSM prepared and submitted on 1 May 2002; a copy of the DD Form 1883, Survivor Benefit Plan Election Certificate, which the FSM submitted on 12 September 1994; a copy of a certificate announcing the FSM had been transferred to the Retired Reserve on 27 October 1994; a copy of a DD Form 2656-7, Verification for Survivor Annuity, which the applicant prepared and submitted on 29 September 2005; and a copy of six pages of emails exchanged between the applicant and Army representatives related to her quest for advice and the status of her request for an SBP Annuity.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows the FSM served in the Marine Corps Reserve, the Marine Corps, the Regular Army, the U. S. Army Reserve, and the Army National Guard.  The FSM was honorably separated from the Indiana Army National Guard on 17 October 1994 and was transferred to the US Army Reserve Control Group (Retired Reserve) on the same date.

2.  On 9 September 1993, the FSM was provided a memorandum, Subject:  Notification of Eligibility for Retired Pay at Age 60 [20 year letter], by the State of Indiana Military Department, Office of the Adjutant General, notifying him he had completed the required years of service to receive retired pay upon application at the age of 60.

3.  An NGB Form 23B, Army National Guard Retirement Points History Statement, dated 1 November 1994 shows the FSM had completed 22 years, 11 months, and
7 days creditable service for retired pay.

4.  On about 9 September 1994, the FSM completed and submitted a DD Form 1883, Survivor Benefit Plan Election Certificate.  He indicated he was married and had dependent children and wanted full coverage for "Children only."  The FSM also elected Option C (Immediate coverage).  By electing Option C, the FSM elected to provide an immediate annuity to his children beginning on the day after date of death, whether his death occurred before or after age 60.  The DD Form 1883 shows the FSM had a different spouse at the time he completed the form, and she concurred with his election by signing the form and dating it 12 September 1994.

5.  The FSM and the applicant married on 7 December 2001.  The FSM's records are void of any information/details pertinent to the end of his marriage to his first spouse.  This is not an issue in this case since the FSM and his first spouse 
agreed to the FSM's RCSBP election of "Children Only" coverage.  The RCSBP coverage would automatically roll over into SBP coverage upon the FSM reaching age 60.
6.  On 1 May 2002, the FSM submitted a DD Form 1882, Survivor Benefit Plan Election Change.  The FSM indicated he was married and had no dependent children.  He requested that a change be made to his RCSBP election "FROM no coverage or coverage for an insurable interest person TO coverage for:" his current spouse, the applicant, based on full retired pay.

7.  The FSM died on 7 September 2005 at 56 years and 12 days of age.

8.  The applicant applied for an SBP annuity on 29 September 2005.  On 22 March 2006 she was given instructions to provide documents that would be needed to make, in effect, a determination about her eligibility for an SBP annuity.

9.  On 17 May 2006, the applicant was notified by an Annuity and Retirement Analyst, US Army Reserve Personnel Command, St. Louis, that her request for an SBP Annuity had been denied by the Defense Finance Accounting System [sic Service] (DFAS), Cleveland.  In the notification, she was advised "a service member who chooses not elect to [sic] his spouse on his initial election cannot make a change to this coverage for a spouse unless it is an 'Open Season'."  The FSM had chose to cover "Children Only" on his original DD Form 1883, dated 12 September 1994.  He was married and his spouse at the time signed the back of the form verifying the fact he was covering "Children only."  Additionally, when he submitted the DD Form 1882, in May 2002, it was not an "Open Season."

10.  The emails exchanged between the applicant and Army representatives indicate confusion and misunderstanding apparently developed at the time the applicant was seeking advice about, and the status of, her request for an SBP annuity.  It is apparent this was not resolved until her application was directed to this Board on or about 27 March 2008.

11.  Public Law 92-425, the SBP, enacted 21 September 1972, established the SBP.  It provided that military members could elect to have their retired pay reduced to provide for an annuity, after their death, to surviving dependents.  An election, once made, is permanent and irrevocable except as provided for by law. 

12.  Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992 (but was 
deferred to 1 April 1992 through 31 March 1993).  Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.  This "Open Season" would have had no effect on the FSM's election 
since he had not been transferred to the Retired Reserve by that date.  The FSM had not yet received his 20 year letter and so was not yet eligible to make an RCSBP election.

13.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  Extensive publicity was again given Army Retirees in Army Echoes.  This "Open Season" would also not have had an effect on the FSM’s election, since he and the applicant had not yet married.

14.  The National Defense Authorization Act for Fiscal Year 2005 established an Open Season to be conducted 1 October 2005 through 30 September 2006.  The evidence shows the FSM died before the first day of the "Open Season."

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the FSM opted for RCSBP coverage for "Children only" at the time he received his 20 year letter.  The evidence shows the FSM had a different spouse at the time he completed his original election form.  The spouse he had at the time concurred with this election of options.  The FSM's records are void of any information pertinent to the end of the FSM's marriage to his first spouse.  This is not an issue in this case in view of the fact he did not elect "Spouse" coverage.  His election of children only coverage was irrevocable according to the SBP statute at 10 USC Section 1448 (a)(4).  He could only have added spouse coverage later on if he had not been married at the time he first became eligible to receive retired pay (within 90 days of his 20 year letter) - but, he was married and declined spouse coverage [see 10 USC 1448 (a)(5)].  The sole remaining way he could have added RCSBP spouse coverage would have been through an "Open Season" which only Congress can declare.

2.  The FSM was honorably separated from the Indiana Army National Guard and was transferred to the Retired Reserve on 17 October 1994.

3.  The FSM and the applicant married on 7 December 2001.

4.  On 1 May 2002, the FSM submitted a Survivor Benefit Plan Election Change. The FSM indicated he was married and had no dependent children.  He 
requested that a change be made to his SBP election from "Children only" to "Spouse" coverage based on full retired pay.

5.  The FSM died on 7 September 2005 at 56 years and 12 days of age.

6.  The date on which he submitted his Survivor Benefit Plan Election Change was not in a period declared to be an "Open Season."

7.  The evidence shows there were no "Open Seasons" for enrollment in or for changes to SBP elections after the FSM was transferred to the Retired Reserve and before he died on 7 September 2005.  The first and only "Open Season" after the FSM and the applicant married was declared after he died.  The first date of this "Open Season" was 1 October 2005.

8.  Regrettably, based on the evidence, the applicant is not entitled to a correction of the FSM's records to show he elected to change his RCSBP election from "Children only" coverage to "Spouse" coverage.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ____x____  ____x__ 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.



      _________x______________
      	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)                                         AR20080005060



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ABCMR Record of Proceedings (cont)                                         AR20080005060



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