IN THE CASE OF:	  

		BOARD DATE:	        04 DECEMBER 2008

		DOCKET NUMBER:  AR20080012801 


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, reconsideration of her previous request to correct the records of her deceased husband to show that he designated her the beneficiary of his Survivor Benefit Plan (SBP) benefits and that he made an election option of full immediate spouse coverage.

2.  The applicant states, in effect, that her husband, a former service member (FSM), made the necessary changes to his records after they were married and he made the election for her to receive his SBP benefits.  However, it appears that those documents were never properly filed with the appropriate authorities and she is being unjustly denied those benefits, despite the witness statements she has submitted from individuals who witnessed him preparing the necessary forms.

3.  The applicant provides a statement from a unit training noncommissioned officer who states that he was sure that they had completed the necessary paperwork for the applicant to receive the FSM's benefits and a statement from the unit clerk indicating that both the applicant and the FSM came to him in March 1993 and updated both of their records by completing all of the necessary forms and providing a copy of their marriage license for inclusion in each of their records.  He also states that the FSM designated the applicant to receive the maximum full benefits allowed on the SBP form.  Additionally, the applicant provides a copy of the FSM's death certificate and last will and testament which designates her as the beneficiary of the FSM's estate.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080001250, on 19 June 2008.

2.  The FSM was born on 17 August 1953 and enlisted in the Army National Guard on 22 April 1972.  He continued to serve in the Army National Guard through a series of continuous reenlistments as a bandsman.  He was promoted to the pay grade of E-6 on 3 January 1990.

3.  On 12 May 1992, the FSM received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  That letter was forwarded to the applicant with a memorandum explaining to the applicant that he had 60 days in which to complete his SBP Election Certificate (DD Form 1883).  He was also provided with the guidance on the new SBP. 

4.  On 6 July 1992, the FSM completed a DD Form 1883 indicating that he was not married, that he had a dependent child, and that he elected Option A, to defer his election until he reached age 60.  Immediately under his option election is a statement informing him that the decision he made with respect to participation in the SBP was an irrevocable decision and that he should consider his decision and its effect very carefully.

5.  On 27 February 1993, the FSM and the applicant were married in Clark County, Washington.  A review of the FSM's records shows that the FSM designated the applicant as his wife and sole beneficiary of his Service-members Group Life Insurance (SGLI) and unpaid pay and allowances.

6.  The FSM was promoted to the pay grade of E-7 on 15 August 2001 and on 31 May 2002, he was honorably discharged from the Oregon Army National Guard and was transferred to the United States Army Reserve Control Group (Retired).  He had 30+ years of creditable service for retired pay purposes.

7.  On 23 July 2007, the FSM passed away in Corvallis, Oregon at the age of 53 and the applicant was listed as his spouse on his death certificate.

8.  On 31 October 2007, in response to the applicant's inquiry regarding her eligibility for the FSM's SBP benefits, officials at the Human Resources Command in St Louis (HRC-STL) notified the applicant that since the FSM failed to change his SBP option during an open season and since he did not live to make an election at age 60, no one was entitled to his SBP annuity.
9.  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.  Spousal notification was required only if the member elected to participate in the RCSBP for less than full spouse coverage.  Before the law was amended as noted below, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elects to participate in the standard SBP.  In other words, failure to elect an option resulted in the default election of option A.  

10.  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 1 year after the date on which that person marries or acquires that dependent child.

11.  Public Law 105-261 (17 October 1998) established an open enrollment period (1 March 1999 - 29 February 2000) for the SBP for members not participating to the fullest possible extent.

12.  Public Law 108-375, (28 October 2004) established an open enrollment period (1 October 2005 – 30 September 2006) for members not participating to the fullest possible extent.

DISCUSSION AND CONCLUSIONS:

1.  While there is no doubt that the FSM updated his military records to reflect that he was married to the applicant, the fact remains that he made an irrevocable election in 1992 to defer his SBP election until he reached age 60 and there is no documentation that he sought to change his election within 1 year after marrying.  Further, the third-party statements submitted by the applicant are not sufficiently reliable to support a grant of relief.

2.  Due to two law changes in 1998 and 2004, two open-enrollment periods were allowed for members not participating in the SBP to the fullest extent, which would have allowed the FSM to change his election.  However, there is no evidence to show that he exercised either of those options.
3.  Therefore, since he elected to defer his SBP election until he reached the age of 60 and since he passed away before reaching that age, no one is authorized to receive an annuity based on the FSM's service and death.

4.  While it is indeed regrettable, the applicant has failed to convincingly show through the evidence submitted with her application and the documentary evidence of record, that the FSM made a valid change in his SBP election during the open-enrollments that followed their marriage.  Accordingly, she is not entitled to receive an SBP annuity based on the FSM's death.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080001250, dated 19 June 2008.




      _______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)                                         AR20080012801



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ABCMR Record of Proceedings (cont)                                         AR20080012801



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