BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090014350 


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 request that the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.

2.  The applicant states, in effect, she is providing additional documents that she hopes will support her case.

3.  In support of her application, the applicant provides a copy of the FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) and DD Form 1172 (Application for Uniformed Services Identification Card Defense Enrollment Eligibility Reporting System (DEERS) Enrollment).

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 AR20080005892 on 24 September 2008.

2.  The FSM's DD Form 1172 is new evidence that requires reconsideration.

3.  The FSM was born on 8 November 1946.

4.  After completing 3 months and 1 day of prior active Federal service and 2 years, 5 months, and 25 days of prior Reserve Component service, the FSM entered the Army National Guard (ARNG) on 21 April 1971.

5.  The FSM's 20-year letter is dated 14 February 1991.

6.  On 8 April 1991, the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate).  He indicated that he was not married, that he had two dependent children (born in July 1974 and June 1977), and elected to participate in the RCSBP for children-only coverage, option C, full base amount.  The DD Form 1883 shows the decision made with respect to participation in the Survivor Benefit Plan (SBP) was a permanent irrevocable decision.

7.  The FSM was honorably separated from the ARNG on 7 September 1998 and transferred to the Retired Reserve.

8.  The FSM and the applicant married on 29 November 2003.

9.  On 8 November 2005 in applying for retired pay benefits, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) electing to participate in the SBP for spouse-only coverage to be based on full gross pay.

10.  The FSM died on 6 October 2007 at age 60.

11.  In support of her request for reconsideration, the applicant provides copies of the following documents:

	a.  The FSM's NGB Form 22 which the applicant submitted with her original request and which was previously considered.

   b.  A DD Form 1172, dated 30 November 2006, shows she was issued a DOD dependent identification card based on her marriage to the FSM.

12.  On 10 August 2009, A____ E. D____, Senator, 19th District, State of Pennsylvania, provided a letter requesting review of the applicant's case to "determine if there are any procedures which would allow for [the applicant] to receive [the FSM's SBP] coverage."

13.  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.

14.  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; and (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.  

15.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reconsideration of her request that the records of the FSM be corrected to show he enrolled in the RCSBP for spouse coverage in a timely manner based on the additional documents she provides.

2.  The evidence of record shows the FSM and the applicant married on 29 November 2003.

	a.  It is noted that in her original application, the applicant indicated she and the FSM were married on 29 December 2003.  In addition, the ABCMR Record of Proceedings incorrectly indicated that they were married on 18 December 2003.  Furthermore, item 23 (Date of Marriage) of the DD Form 2656 that the FSM completed on 8 November 2005 incorrectly indicated 29 November 2002 as their date of marriage.

	b.  Despite these administrative errors pertaining to the date of the marriage, the inaccuracies are harmless, as they were not the cause of the FSM's delay in enrolling in the RCSBP for spouse-only coverage, nor do they affect the decision rendered in the original consideration of the applicant's case.

3.  The additional documents the applicant provides in support of her request for reconsideration offer no new substantive evidence that would have impacted the original decision rendered by the Board.

4.  The Board also considered the request of Senator D____ for review of the applicant's case to "determine if there are any procedures which would allow for [the applicant] to receive [the FSM's SBP] coverage."

	a.  The governing law is clear in that a person who is not married, but who later marries, 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.  The FSM failed to make such an election within 1 year after the date on which he and the applicant married.

	b.  The law governing the open enrollment season required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  The evidence of record shows that the FSM submitted his application to enroll in the SBP with spouse coverage on 8 November 2005 and he died on 6 October 2007.  Even if the FSM had enrolled in the SBP on the earliest date possible, 1 October 2005, the earliest effective date of that election would have been 1 November 2005.  Unfortunately, the FSM did not live 2 years from the effective date of the election he made as required by law.

5.  Regrettably, therefore, in view of all of the foregoing the applicant is not entitled to the SBP annuity in this case.









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 AR20080005892, dated 24 September 2008.



      ___________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)                                         AR20090014350



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ABCMR Record of Proceedings (cont)                                         AR20090014350



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