IN THE CASE OF:	  

		BOARD DATE:	        07 MAY 2009

		DOCKET NUMBER:  AR20090001369 


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 reconsideration of her previous request that the records of her husband, the former service member (FSM) be corrected to show that he elected to change his Survivor Benefit Plan (SBP) coverage from "Natural person with insurable interest-mother" to "Spouse only" coverage upon marriage.

2.  The applicant states, in effect, that the FSM completed the DD Form 1883 (Survivor Benefit Plan Election Certificate) in 1994 when he was unmarried, electing his mother as the beneficiary of his SBP benefits.  She further adds that after she was married to the FSM, he completed the DD Form 2656 (Data for Payment of Retired Personnel), changing coverage to his spouse.  She also adds that she was told the DD Form 2656 would supersede the DD Form 1883.  She concludes that when her spouse died, she was denied SBP benefits under Public Law 93-397.

3.  The applicant provides in support of her application, a self authored letter addressed to the Army Review Boards Agency dated 29 December 2008; a copy of a DD Form 2656 (Data for Payment of Retired Personnel); a copy of a DD Form 1883 (Survivor Benefit Plan Election Certificate); a copy of her 
mother-in-law's Certificate of Death; and a copy of her Certificate of Marriage to the FSM.





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 AR20070011157, dated 3 January 2008.

2.  The applicant provides new evidence and new argument which will be considered in this case.

3.  The FSM's records show that he was born on 13 December 1946.  He was inducted into the Army on 6 April 1967 and was honorably released from active duty and transferred to the United States Army Reserve (USAR) Control Group on 4 April 1969.  He later enlisted in the USAR on 28 April 1976 and subsequently had a series of reenlistments in the USAR until 9 September 1994, when he was assigned to the USAR Control Group (Retired).  

4.  On 11 July 1994, the State of Delaware, Department of Military Affairs, Headquarters, Delaware National Guard, Wilmington, Delaware, 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.  

5.  On 19 July 1994, the FSM completed his DD Form 1883.  In Section II (Marital, Dependency, and Election Status), he indicated that he was unmarried and did not have dependent children.  He elected to participate in the RCSBP with “Natural person with insurable interest” full coverage under Option C (Immediate Coverage).  He listed his mother as the person who had an insurable interest to him and who he wanted to receive the annuity.

6.  On 9 October 1999, the FSM married his current spouse.

7.  On 10 April 2003, the FSM's natural person with insurable interest-mother died.

8.  On 4 October 2006, Human Resources Command (HRC), St. Louis, Missouri, informed the FSM by memorandum that his application for retired pay was approved.  The HRC also published Orders Number P10-690096, on 4 October 2006, placing the FSM on the Retired List effective 13 December 2006 in the retired grade of sergeant (SGT)/pay grade E-5.



9.  On 10 October 2006, the applicant died.  He would have turned 60 years old on 13 December 2006.

10.  On 25 April 2007, the applicant was informed by memorandum from HRC-St. Louis, Missouri, that the FSM's DD Form 1883, dated 19 July 1994, naming his mother as the beneficiary, was the only form on file.

11.  The applicant appealed to the ABCMR in an application dated 1 August 2007 requesting that the FSM's records be corrected to show that he elected to change his SBP coverage from "Natural person with insurable interest-mother" to "Spouse only" coverage upon marriage.  The ABCMR denied her appeal on 3 January 2008.

12.  The applicant now submits a copy of a DD Form 2656 dated 15 September 2005, which shows that the FSM elected SBP spouse coverage at the full gross pay amount.  On the DD Form 2656, the FSM indicated that he had previously elected SBP coverage listing his mother as his insurable interest beneficiary who is deceased.

13.  The self authored letter that the applicant submits in support of her appeal is addressed to the Army Review Board Agency Support Division, St. Louis, and it is dated 29 December 2008.  In the letter the applicant states that she and the FSM were advised that the DD Form 2656 would supersede the DD Form 1883 that was initially submitted by the FSM and that the DD Form 2656 designates her as the person to receive 100 percent share of his unpaid retired pay.  She states that she was denied an SBP annuity under Public law 95-397.  She states that she followed the directives given to her by an official who advised her to send a copy of her marriage certificate to change the beneficiary on the insurance policy.  She states that the official did not mention the opportunity to enroll a spouse during the open enrollment period of 1 October 2005 through 20 September 2006 as indicated in the previous decision made by the ABCMR. 

14.  In the self authored letter submitted by the applicant she questions how was the FSM to know about the opportunity to enroll a spouse and whether the military provided any type of notification?  The applicant states that the FSM was diagnosed with Post Traumatic Stress Disorder and was being treated through the Veterans Administration.  She questions why she and and FSM were not notified regarding the open enrollment period when it was available.  In the letter, the applicant states that after several attempts, she finally secured a copy of the 




DD Form 2656 from the HRC and that this is another example of the incompetent/inconsistency that the military displays.  She states that the DD Form 2656 was submitted with the FSM's retirement package; therefore, there is no reason why HRC could not have provided a copy of the form.

15.  Title 10, U. S. Code, section 12731(a)(d), states in pertinent part, a Soldier is entitled, upon application, to retired pay computed under section 12739 of this title if the Soldier is at least 60 years of age and has performed at least 20 years of qualifying service while a member of the reserve component of an armed force.  The Secretary concerned shall notify each Soldier who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the Soldier within one year after the Soldier completes that service.  The written communications shall include notice of the elections available to such persons under the SBP, the Supplemental SBP and the effect of such elections.

16.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

17.  Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976, reduced the waiting period for a new spouse's eligibility from 2 years to 1 year following post-retirement marriage.  

18.  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.  

19.  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.  



20.  All issues of Army Echoes going back at least to the January – March 1998 issue carry the reminder: “REMEMBER:  You (emphasis in the original) are responsible for updating your retired pay file information at DFAS-CL (address below) within one year of the event if you marry, remarry, have a child, are widowed, or divorced and need to make or update a SBP election.”

21.  Army Echoes, Issue 1, January – April 2005 first alerted retirees that an SBP Open Enrollment period would run from 1 October 2005 – 30 September 2006.

22.  Army Echoes, Issue 3, September – December 2005, first alerted retirees that the retiree who enrolled in the SBP during the Open Enrollment period must pay monthly premiums starting on the date of enrollment and a one-time buy-in enrollment premium.  It provided an internet site that would aid retirees in calculating their cost.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's records should be corrected to show that he elected to change his SBP coverage from "Natural person with insurable interest-mother" to "Spouse only" coverage upon marriage.

2.  The applicant’s contentions have been considered.  However, the FSM was not married at the time he received his 20-year letter and so he elected to participate in the RCSBP with “Natural person with insurable interest” full coverage under Option C (Immediate Coverage) and he listed his mother as the person who had an insurable interest in him and who he wanted to receive the annuity.  There is no evidence the FSM sought to provide SBP to the applicant instead of his mother in the 3 1/2 years between his marriage to the applicant and his mother's death.

3.  Unfortunately, the DD Form 2656 that the applicant submitted in support of her application was not completed during an open enrollment season and it was not submitted within 1 year of her marriage to the FSM as required by law.  Additionally, the FSM did not live 2 years from the effective date of election as required by law.

4.  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 Open Season enrollment for beneficiaries to be eligible for an annuity.  The FSM’s DD Form 2656 was completed on 15 September 2005, he died on 10 October 2006.  Therefore, the applicant is not entitled to the SBP annuity.

5.  The applicant is not being denied SBP benefits based on any erroneous information that she may have received she is being denied SBP based on the requirements of the law.  

6.  As previously stated, the Army Echoes alerted FSMs regarding the SBP and the open enrollment dates for SBP participation and the applicant and the FSM failed to enroll during any of the available enrollment dates.  Regrettably, there is insufficient evidence that would warrant granting the relief requested.

7.  In order to justify correction of a military record the applicant must show 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.

8.  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 to amend the decision of the ABCMR set forth in Docket Number AR20070011157, dated 3 January 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)                                         AR20090001369



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ABCMR Record of Proceedings (cont)                                         AR20090001369



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