IN THE CASE OF:	  

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090013510 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant’s earlier request for correction of the records of her deceased spouse, a former service member (FSM), to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage and that she be paid the RCSBP annuity.

2.  Counsel references three intentions of the FSM to provide SBP benefits for his spouse, J----.  First, counsel mentions the letter from a retired sergeant first class (SFC), who worked as a full-time retirement counselor for the South Carolina Army National Guard (SCARNG).  Counsel states that the second indication of the FSM’s intent to provide SBP benefits for his spouse comes in the form of the DA Form 4240 (Data for Payment of Retired Army Personnel), which the FSM signed on 11 May 1998.  In this form, the FSM elected spouse coverage with full base amount; listed his spouse, J----, as the beneficiary; and indicated he had no dependent children.  Counsel referenced a statement in the Board's previous proceedings which indicated the FSM’s DA Form 4240 was incomplete because it lacked a signature in Part VII (SBP Certificates).  Counsel argued that the FSM failed to sign the section on the form acknowledging that he had been fully counseled regarding the benefits afforded under the SBP.

3.  Counsel states that a third indication of the FSM’s intent to provide SBP benefits for his spouse can be directly attributed to his ignorance or lack of counseling regarding SBP.  When the FSM signed his DA Form 4240 in 1998 his dependent children had reached adulthood and he understood they were not eligible for SBP beneficiaries; however, the Defense Finance and Accounting Service (DFAS) continued to deduct SBP premiums from his retired pay.  Counsel alleged that the FSM thought his spouse was a beneficiary by allowing the SBP premiums to continue to be deducted from his retired pay.  Furthermore, the FSM had not been adequately counseled regarding the program and he did not understand the premium for spouses was different than that for children.  Counsel argues that the statement from DFAS did not indicate “children only coverage” and did not cover spouse coverage.  Counsel states that the applicant understands the correct premiums were not taken from the FSM’s retired pay; however, she would be willing to pay these.  Counsel asks that the Board acknowledge the FSM’s desire to take care of his wife and to not punish the applicant for a clerical error.

4.  Counsel provides a letter of support from SFC D---- L. L-- (Retired), dated
22 April 2009; a DFAS Summary of Retired Pay Account prepared on 23 July 1999; and DA Form 4240, dated 11 May 1998, in support of the applicant’s request for reconsideration.

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 AR20070005326 on 20 November 2007.

2.  Counsel provides new arguments and a letter from a retired SFC as stated above, which warrants consideration by the Board.

3.  The FSM was born on 12 July 1939.  The FSM was appointed in the SCARNG as a second lieutenant on 12 July 1965 after completing prior enlisted service.

4.  On 12 March 1982, the National Guard Bureau (NGB) notified the FSM that he had completed the required years of service to be eligible for retired pay at age 60 (20-Year Letter).

5.  On 15 August 1983, the FSM completed a DD Form 1883 and indicated he was not married, he had two dependent children, and he elected “children only coverage.”  He listed his two dependent children (ages 18 and 12).

6.  The FSM and the applicant were married on 4 August 1994.

7.  On 11 May 1998, the FSM completed a DA Form 4240 and elected to participate in the SBP for spouse coverage with full base amount.  In Part V (SBP Election) on this form, the FSM indicated that he was married and did not have dependent children.  The FSM signed Part VI (Certification) to certify that the number of withholding exemptions claimed does not exceed the number to which he was entitled.  Part VII was not signed by the FSM acknowledging that he had been fully informed and counseled concerning the options available under the SBP.

8.  The FSM reached age 60 on 3 July 1999 and he applied for retired pay.

9.  The FSM's DFAS Summary of Retired Pay Account shows his RCSBP coverage as “Children Only” and that an RCSBP cost of $2.58 per month was deducted from his pay.

10.  Records show the FSM completed 23 years of qualifying service for retirement purposes.

11.  The FSM’s Retiree Account Statement, effective 2 December 2006, shows his SBP coverage type was “children only” and that an RCSBP cost of $3.20 per month was deducted from his pay.  His child’s date of birth was listed as 23 September 1971.

12.  The FSM died on 31 December 2006 and his death certificate reflects that he was married to the applicant at the time.

13.  The applicant provided a copy of the FSM’s Summary of Retired Pay Account prepared on 23 July 1999.  This statement shows the FSM elected RCSBP on 15 April 1985, which became effective 3 July 1999.  It shows the RCSBP coverage as “Children Only” and that an RCSBP cost of $2.58 was deducted from the FSM’s pay.

14.  The applicant provided a letter from SFC (Ret) D---- L. Lee, dated 22 April 2009.  The retired SFC stated that she was the full-time Retirement Counselor for the SCARNG and she had assisted the FSM in completing the necessary paperwork for his Reserve Component Retirement.  In this letter, she affirmed that the FSM completed a DD Form 1883 (sic), mailed it, and named his spouse as beneficiary of the SBP.  The retired SFC attested that the FSM made a long trip from Chattanooga, TN to the SCARNG Headquarters in Columbia, SC to ensure that his retirement packet was done correctly.

15.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

16.  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.  RCSBP premiums pay for post coverage.

17.  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.

18.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  Extensive publicity was given in Army Echoes.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received his 20-Year Letter in August 1983.  He was not married at the time.  He completed the DD Form 1883 by electing dependent child only coverage, Option C.

2.  The FSM and the applicant were married in August 1994.  There is no evidence which indicates he elected to request spouse RCSBP coverage within one year of their marriage.

3.  The FSM completed another election (DA Form 4240) on 11 May 1998 and indicated that he was married with no dependent children.  At that time, he elected spouse only coverage with full base amount.  There is no signature in Part VII of this form indicating the FSM had been fully counseled regarding SBP.  

4.  The FSM’s retirement account statements prepared in July 1999 and December 2006 reveal that DFAS continued to deduct SBP premiums from his retired pay even though his children were no longer beneficiaries.

5.  The FSM died on 31 December 2006.

6.  The new evidence provided by the applicant was carefully reviewed.  In the 22 April 2009 letter, the retired SFC attested to the fact that she had assisted the FSM with his retirement packet and that the FSM had named the applicant as beneficiary of the SBP.

7.  Considering there is evidence to show it was the FSM's intent to provide SBP coverage for the applicant, it would be appropriate, as a matter of equity, to correct the FSM’s records to show he requested his SBP coverage be changed to spouse coverage within a timely manner.

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 amendment of the ABCMR’s decision in Docket Number AR20070005326 on 20 November 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the FSM had requested SBP coverage on 1 March 1999 during the Open Season enrollment period, that DFAS received and processed the SBP paperwork to be effective 1 April 1999, and that the applicant be paid the SBP annuity retroactive to the date of the FSM's death minus any appropriate premiums or buy-in costs.



      __________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)                                         AR20090013510



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