IN THE CASE OF:	

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080006415 


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 the records of her deceased husband, a former service member (FSM), be corrected to reflect her as sole beneficiary of his Survivor Benefit Plan (SBP) coverage.

2.  The applicant states she and the FSM married on 1 August 2000; she is the FSM's second wife.  When the FSM received his letter of eligibility for non-regular retired pay at age 60 (20-Year Letter) in November 1988, he was married to his first wife.  At that time, he elected with spousal concurrence "children only" SBP coverage.  On an unknown date, the FSM and his first wife divorced.

3.  Following their 1 August 2000 marriage, the applicant and the FSM went to Niagara Falls (NY) Air Reserve Station to enroll the applicant in the Defense Enrollment Eligibility Reporting System (DEERS), change civilian and military retirement accounts, and change his SBP elections.  She does not have copies of the change to the FSM's SBP elections, but it is her belief the FSM was adamant about making her his SBP beneficiary and did make the required changes.

4.  The applicant provides the following additional documentary evidence in support of her application:

	a.  Affidavit, dated 27 March 2008.


	b.  Notification of Eligibility for Retired Pay at Age 60 Memorandum, dated 17 November 1988.

	c.  DD Form 1883, dated 7 January 1989.

	d.  Certificate of Marriage, dated 2 August 2000.

	e.  Miscellaneous letters and Designation of Beneficiary Forms from the New York State Police and Fire Retirement System.

	f.  Certificate of Death, dated 26 August 2001.

	g.  Letter, dated 5 June 2007, from the applicant to the Human resources Command (HRC), St. Louis, Missouri (MO).

	h.  Copies of Military Identification Cards belonging to the applicant and his spouse.

	i.  Letter, dated 10 August 2007, from HRC-St. Louis, MO.

	j.  Letter, dated 24 October 2007, from the applicant to HRC-St. Louis, MO.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the FSM’s records to show he timely executed a new DD Form 1883 naming the applicant, D____, as beneficiary for his SBP benefits.

2.  Counsel states that, at the time the FSM executed his original DD Form 1883, he was not married to the applicant.  He was in the process of separating and divorcing his first wife, C________.  His first wife agreed to benefits and coverage passing only to their natural (minor) children.  Subsequent to his marriage to the applicant, the FSM took immediate steps to have her name entered on all insurance and retirement policies.  Additionally, he completed all paperwork to enter the applicant’s name into DEERS and, during that DEERS processing, he specifically requested the SBP forms and he was under the belief all required documentation had been completed.  Less than a year after his marriage, he died.  The applicant was denied an SBP annuity because HRC-St. Louis did not have an updated DD Form 1883 naming her as the beneficiary.  It is the applicant’s belief that the FSM completed the form and submitted it to the DEERS office.  It was less than a year from the date of marriage when the FSM 

died and the period for updating this form had not expired.  It is clear that his intent was to include the applicant on all his retirement, insurance, and SBP.  The applicant never waived her right under the regulation that controls the SBP. 

3.  Counsel did not provide any additional documentary evidence in support of the applicant’s request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM’s records show he was born on 9 May 1948 and initially entered military service on 1 July 1968.  His records also show he married his first wife, C________, on 20 September 1969.

3.  On 17 November 1988, Headquarters, New York Army National Guard (NYARNG), Latham, New York, 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.  

4.  On 7 January 1989, the FSM completed a DD Form 1883 electing “children only” coverage, full amount, option B, under the Reserve Component SBP (RCSBP).  At the time, the FSM and his first wife, C________, had three minor children:  P______, born on 24 January 1972; T_____, born 14 July 1976; and J___, born 21 July 1982.  He and C________ authenticated this form by placing their signatures and dates in the appropriate section.

5.  On an unknown date, the FSM and his first wife (C________) were divorced.  The facts and circumstances surrounding their divorce are not available for review with this case.  Additionally, it is unclear if the FSM notified DFAS of his divorce.

6.  On 1 August 2000, the FSM married his second wife, the applicant.  There is no indication that the FSM notified the Defense Finance and Accounting Service (DFAS) of his remarriage.

7.  On 26 August 2001, the applicant died at the age of 53.

8.  On 10 August 2007, HRC-St. Louis, MO, notified the applicant, by letter that she was ineligible for payment of the SBP annuity since the FSM did not execute a DD Form 1883 changing his coverage from “children only” to “spouse.”

9.  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. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

10.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for RC members who qualified for Reserve retirement, but were not yet age 60 (and eligible to participate in the SBP), to provide an annuity for their survivors should they die before reaching age 60.  Three options were 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 until the date of the member’s 60th birthday; or 

	c.  Elect that a beneficiary receive an annuity immediately upon their death if before age 60.

10.  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 – the options automatically roll into SBP coverage.  If RCSBP Option B or C is elected, there is a Reservist additional 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.


11.  Child coverage and premiums are automatically suspended when the last remaining eligible child loses eligibility; however, while pursuing a full-time course of study or training, a child whose 22nd birthday occurs before July 1 or after August 31 of a calendar year, is considered to be 22 years of age on the first day of July after that birthday; therefore child premiums will automatically be suspended effective July 1 when such a child is the last remaining eligible child.

12.  A member married at retirement, who declines SBP spouse coverage, cannot later enroll in the plan on behalf of that spouse or any future spouse unless during a Congressionally approved open enrollment period (emphasis added.  Normally penalties and extra charges are assessed during these periods.

13.  Public Law 101-189, enacted 29 November 1989, established an Open Season to run from 1 October 1991 (deferred to 1 April 1992) – 30 September 1992.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  It also provided that the effective date of election shall be the first day of the month following the month DFAS receives the election.

14.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  It required that enrollees live two 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 one-time, lump sum enrollment premium.  Extensive publicity was given in Army Echoes.  Army Echoes also warned that for a retiree with a high number of years since first being able to enroll a beneficiary in the SBP and whose retired pay was fairly high, the enrollment premium alone could exceed $50,000.

15.  The National Defense Authorization Act for Fiscal Year 2005 establishes an Open Season to be conducted 1 October 2005 to 30 September 2006.  It required that enrollees live two 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.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that upon receipt of his 20-year letter, the FSM executed an SBP Election Certificate, electing immediate coverage under Option B for “children only coverage.”  As was required by law, his wife at the time, C________, concurred with his election and authenticated this election by placing her signature in the appropriate place on the DD Form 1883.

2.  When the FSM initially chose the SBP election of Option B “children only coverage," he irrevocably forfeited future spouse coverage except during a Congressionally-approved open enrollment period.  The applicant and the FSM married on 1 August 2000, there was no open season in effect; the next available open season during which the FSM could have enrolled with the applicant as beneficiary was 1 October 2005 to 30 September 2006 (the previous open enrollment period being 1 March 1999 – 29 February 2000.  Enrollment of the applicant as beneficiary would not have been possible until October 2005 at the earliest.

3.  Even if the FSM had been able to enroll the applicant as his SBP beneficiary at the time of their marriage, he would have been required to live two years from the effective date of election for the applicant to be eligible for an annuity.  The applicant stated in her affidavit that she and the FSM visited Niagara Falls Air Reserve Station in September 2000 and filed all necessary forms.  Assuming the necessary enrollment forms were filed with the DFAS in September 2000, the effective date of election would have been 1 October 2000, the first day of the month following the month DFAS received the election.  The applicant would have had to live until October 2002 for the applicant to be eligible for an annuity.  The applicant died on 26 August 2001.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement. 

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)                                         AR20080006415



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ABCMR Record of Proceedings (cont)                                         AR20080006415



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