IN THE CASE OF:
BOARD DATE: 14 January 2010
DOCKET NUMBER: AR20090011447
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, the daughter of the former spouse of the deceased former service member (FSM), requests, in effect, correction of the FSM's military records to show that he elected Reserve Component Survivor Benefit Plan (RCSBP) coverage for his former spouse prior to his 60th birthday.
2. The applicant states that the FSM intended for his former spouse to receive his SBP benefits and he submitted his election in 1990 and 1999. Because his former spouse had signed the document before the FSM and the FSM did not sign until after his 60th birthday, the SBP benefit has been denied to his former spouse. The FSM had money taken out of his retired pay for SBP coverage.
3. The applicant provides, in support of the application, copies of a MONY Financial Services Companies letter, dated 16 November 1990; DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 26 November 1990; and the FSM's State of Oklahoma Certificate of Death, dated 25 February 2009.
CONSIDERATION OF EVIDENCE:
1. The FSM's date of birth is 14 March 1939. He attained age 60 on 14 March 1999.
2. A DD Form 1883, dated 26 November 1990, shows the FSM elected full RCSBP coverage for an insurable interest identified as his ex-spouse, C------ S. H-----. The FSM and witness signed the form on 26 November 1990. There is no evidence showing that the Defense Finance and Accounting Service (DFAS) received or processed this document.
3. On 20 December 1994, the U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, MO, wrote a letter to the FSM informing him that his
DD Form 1883 had been made a part of his RCSBP file. It also stated that recent changes in the RCSBP placed coverage for former spouses under the same cost provisions as for spouses. He was provided the necessary forms to request an election for former spouse coverage and asked to return them as soon as possible.
4. A DD Form 2656 (Data for Payment of Retired Personnel), submitted by the FSM to the DFAS in March 1999, shows that the FSM elected full SBP coverage for his former spouse. He also identified his former spouse as an "insurable interest" party. The former spouse signed the form on 23 March 1999. The FSM signed the form on 25 March 1999, after he had attained the age of 60.
5. The FSM's Certificate of Death shows he died on 28 January 2009. It also shows that he was divorced at the time.
6. DFAS records show that the FSM's RCSBP election was deemed invalid. As a result, his election was automatically changed to full coverage for spouse and premiums deducted from his retired pay.
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.
9. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members, including Reservists.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the FSM's automatic election of spouse coverage under the SBP should be changed to former spouse coverage and that the former spouse should receive an SBP annuity from the date of the FSM's death.
2. The available evidence clearly shows that the FSM intended to provide full RCSBP coverage for his former spouse and that he had submitted his election on two separate occasions.
3. The FSM's submission in 1999 was improperly dated and submitted after his 60th birthday. Therefore, DFAS considered it invalid. His election was subsequently changed to full coverage for spouse and premiums were deducted from his retired pay, even though he was not married.
4. However, the FSM had made a proper RCSBP election for former spouse coverage when he completed his DD Form 1883 in November 1990
5. The FSM's records should be corrected to show that he timely submitted an RCSBP election, that it was accepted by DFAS as a request for RCSBP former spouse coverage, and that it was processed accordingly.
6. Furthermore, the records should be corrected to show that the former spouse applied for SBP annuity benefits in conjunction with the FSM's death on
28 January 2009.
BOARD VOTE:
____x____ ____x____ ___x_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. showing that the FSM's DD Form 1883 was timely received by DFAS, that it was accepted as a request for RCSBP former spouse coverage, and that it was processed accordingly;
b. showing that the former spouse applied for SBP annuity benefits in conjunction with the FSM's death on 28 January 2009; and
c. paying the FSM's former spouse an SBP annuity in accordance with the FSM's election.
___________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) AR20090011447
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ABCMR Record of Proceedings (cont) AR20090011447
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