IN THE CASE OF:	  

		BOARD DATE:	        16 OCTOBER 2008

		DOCKET NUMBER:  AR20080007877 


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 she be determined to be the eligible beneficiary of the Survivor Benefits Plan (SBP) of her deceased spouse, a former service member (FSM).  

2.  The applicant states that the FSM assumed when he got his 20-year letter in March 2002 that the children were covered under the law for spouse and children.  He especially thought that the children were automatically covered, as they have two daughters who are twins that are 14 years of age.   

3.  The applicant provides a handwritten letter of explanation; a DA Form 5960; a letter from the Human Resources Command – St. Louis, Transitions and Separations Branch dated 28 January 2008; a copy of orders transferring the FSM to the Retired Reserve effective 14 November 2003; a copy of the FSM’s Retirement Points Accounting System; a copy of his 20-year letter dated 13 March 2002; a copy of a DD Form 2656-7 (Test) (Verification for Survivor Annuity); a copy of a DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces; two    DD Forms 2788 (Child Annuitant School Certification); copies of birth certificates for the two minor children; an altered and uncertified direct deposit sign-up form; a DA Form 5960 (Authorization to Stop, Start, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA)); the applicant’s birth certificate; a copy of a Form W-4P (Withholding Certificate for Pension or Annuity Payments); a copy of the FSM’s Death Certificate; and a copy of a marriage license.    
 
CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 5 May 1962 and enlisted in the United States Army Reserve (USAR) under the delayed entry program (DEP) on 15 June 1981.  He enlisted in the Regular Army on 4 March 1982 and served on active duty until he was honorably released from active duty (REFRAD) on 3 March 1986 and was transferred to the USAR Control Group (Reinforcement).  

2.  On 6 August 1986 he was transferred to a Troop Program Unit and served as a military policeman for the remainder of his career.  He was promoted to the pay grade of E-5 on 5 December 1990.  

3.  On 7 October 2001, the applicant completed a DA Form 5960 to start his BAQ with dependent children and named his twin daughters as his dependents.  He also certified that he was providing and was willing to provide adequate support for his dependents.  That form was not authenticated by a certifying officer. 

4.  On 9 October 2001, he was ordered to a temporary tour of active duty at Fort Hood, Texas.    

5.  On 13 March 2002, a Notification for Eligibility for Retired Pay at Age 60    (20-Year letter) was dispatched to the applicant.  The memorandum explained to the applicant his entitlement to participate in the Reserve Component Survivor Benefit Plan (RCSBP) and the requirement to complete the DD Form 1883 (Survivor Benefit Plan – Election Certificate) that he was being provided at the time, within 90 days of the date of the 20-year letter.  The memorandum also explained to the applicant that if he was married, he would automatically be enrolled under Option C, Spouse and Children coverage based on full Retired pay, unless he submitted another option.  The applicant was not married at the time. 

6.  On 15 March 2002, a Physical Evaluation Board convened at Walter Reed Army Medical Center in Washington, D.C. and determined that the FSM was unfit and should be separated from the service without disability benefits or transferred to the Retired Reserve.  The FSM elected to be transferred to the Retired Reserve until such time as he was eligible to apply for non-regular Retired pay at age 60.  

7.  On 14 June 2002, he was honorably released from active duty and was transferred back to his USAR unit.

8.  On 14 November 2003, he was transferred to the USAR Control Group (Retired). 
9.  On 17 December 2007, the applicant contacted officials at the Human Resources Command – St. Louis requesting a copy of the FSM’s 20-year letter.  She informed officials that she had a power of attorney to sign for her husband.  She was advised to submit a written request with a copy of the Power of Attorney. 

10.  On 24 December 2007, the applicant and the FSM were married in Chicago, Illinois.

11.  On 27 December 2007, the FSM died of malignant cerebral neoplasm (brain cancer) at the age of 45.

12.  On 28 January 2008, the applicant was notified that she was not eligible for benefits based on the FSM’s military service because he had not made an election and because he was not married at the time, he was not automatically enrolled in the SBP.  She was advised at that time that she could apply to the Board and was provided a DD Form 149.

13.  The birth certificates provided by the applicant indicate that the FSM is the father of the two children born on 2 December 1993. 

14.  A review of the FSM’s records shows that the applicant was single with three dependents.  It appears that he had three daughters; however, the available records do not list all three by name or provide all of their current locations. 

15.  Public Law 95-397, the Reserve Component Survivor Benefit Plan (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.  Effective 1 January 2001, Reserve members with a spouse or dependent children who failed to enroll or declined enrollment in the RCSBP within the 90-day period are automatically enrolled under Option C for their spouse and/or children.
16.  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. 

17.  Public Law 92-425 essentially provides that there is a mandatory 1-year waiting period from the date of marriage until the first month of eligibility of SBP.

18.  Title 10, United States Code, Section 1448, provides, in pertinent part, that a member who has dependent children and does not make an election within 90 days of becoming eligible to participate in the SBP will be automatically enrolled.
 
DISCUSSION AND CONCLUSIONS:

1.  The FSM did not enroll in the SBP and the applicant was not married to the applicant for 1 year prior to his death.  Accordingly, the applicant is not entitled to be the beneficiary of any SBP benefits the FSM may have been eligible to receive. 

2.  However, the available evidence of record indicates that prior to his marriage to the applicant, he fathered three children, two of which the applicant is the mother, and while the applicant did not list his children in all of his records, he nevertheless was responsible to ensure that they received his benefits in the event of his death.  

3.  It is also noted that since the FSM did not make it known in all of his records that he had three children, the provisions to automatically enroll him in the SBP could not be applied by the Department.  However, that in itself does not preclude his enrollment at this time, retroactive to the date he should have been automatically enrolled.  

4.   Inasmuch as the Department would have automatically enrolled him in the SBP under the “Children Only” election had it been aware that he had dependent children, once his 90-day window had expired, it would be in the interest of justice to do so at this time.


5.  Accordingly, his records should be corrected to show that he was automatically enrolled in the SBP under the “Children Only” election under Option “C” effective 1 July 2002 and that all premiums that would have become due be deducted prior to any payments to authorized recipients. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  __X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 
showing that the FSM was automatically enrolled in the SBP under Option C, Children Only, effective 1 July 2002, and that all premiums that would have become due be deducted prior to any payments to authorized recipients (any or all of the FSM’s three daughters).

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to making the applicant the beneficiary of the FSM’s SBP benefits.



      __________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)                                         AR20080007877



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007877



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1