IN THE CASE OF:	  

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080005892 


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 enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage in a timely manner.

2.  The applicant states that the FSM received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 14 February 1991.  She states that when he received his notification, he was not married and elected SBP for his children only and that the election was made on 8 April 1991.  She states that the FSM was discharged from the Pennsylvania, Army National Guard (PAARNG) on 7 September 1998 and that he was transferred to the Retired Reserve.  The applicant states that she and the FSM married on 29 December 2003 and that they made application for retired pay at age 60 on 8 November 2005.  She states that at that time, he elected coverage for spouse only based on full gross pay.  

3.  The applicant states that the FSM died on 6 October 2007; however, prior to his death they spoke on several occasions about receiving SBP from the military service in the event of his death.  She states that when she did not receive the annuity, she decided to inquire on the status of the payment and she contacted the Defense Finance and Accounting Service (DFAS) on 10 March 2008.  She states that she was informed that since the FSM did not make an election to cover her within 1 year of the marriage, she was not entitled to the SBP.  She states that she believes that this is an injustice because the FSM did cover her when he signed his application on 8 November 2005.  She states that he certainly was not aware of the 1 year rule that he should have been counseled on 14 years earlier.

4.  The applicant provides in support of her application, a copy of the FSM’s Application for Retired Pay Benefits, dated 8 November 2005, which includes a Data for Payment of Retired Personnel; a copy of an SBP Election Certificate dated 7 April 1991; a copy of his Report of Separation and Record of Service (NGB Form 22); a copy of his Notification of Eligibility for Retired Pay at Age 60, dated 14 February 1991; a copy of her Certification of Marriage Record; and a copy of the FSM’s Certificate of Death.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 8 November 1946.  After completing 3 months and 1 day of prior active Federal service and 2 years, 5 months and 25 days of prior Reserve Component service, the FSM enlisted in the Army National Guard on 21 April 1971.

2.  The FSM's 20-year letter is dated 14 February 1991.  On 8 April 1991, he completed a DD Form 1883.  He indicated that he was not married, that he had two dependent children (born in July 1974 and June 1977), and that he elected to participate in the RCSBP for children only coverage, option C, full base amount.  The DD Form 1883 stated that his decision to participate was a permanent irrevocable decision.

3.  The FSM was separated from the Army National Guard and transferred to the Retired Reserve on 7 September 1998.

4.  The FSM and the applicant married on 18 December 2003.

5.  On 8 November 2005, in applying for retired pay benefits, the FSM completed a DD Form 2656 electing to participate in the RCSBP for spouse only coverage, to be based on full gross pay without supplemental SBP, option A.

6.  The FSM died on 6 October 2007 at age 60.

7.  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. 




8.  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 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.  Once a member elects either Option 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 had the member died prior to age 60.

9.  Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married and 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.  (The Defense Finance and Accounting Service (DFAS) interprets the phrasing of the first sentence of this section to read, “…is not married or has no dependent child.…”)

10.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 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 have paid 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.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The FSM was not married at the time he received his 20-year letter and so he enrolled in the RCSBP for children only coverage.  The DD Form 1883 stated that his decision to participate was a permanent irrevocable decision.  




2.  The FSM elected spouse only coverage on his DD Form 2656 when he was applying for his retired pay on 8 November 2005.  While the DD Form 2656 was completed during an open enrollment season and he indicated that it was his desire that the applicant receive the SBP annuity, he did not live 2 years from the effective date of election as required by law.

3.  In accordance with Public Law 108-375, enacted on 28 October 2004, it is required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  The FSM’s DD Form 2656 was completed on 8 November 2005, he died on 6 October 2007.  Therefore, the applicant is not entitled to the SBP annuity.

5.  In view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20080005892



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ABCMR Record of Proceedings (cont)                                         AR20080005892



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