IN THE CASE OF:	

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090017757 


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 spouse of a deceased former service member (FSM), requests Reserve Component Survivor Benefit Plan (RCSBP) annuity pay.

2.  The applicant states she was denied RCSBP annuity pay for spouse coverage by the Defense Finance and Accounting Service (DFAS).

3.  The applicant provides:

* DD Form 108 (Application for Retired Pay Benefits) dated 24 April 2006
* DD Form 2656 (Data for Payment of Retired Personnel)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Form 1883 (Survivor Benefit Plan Election Certificate) dated 13 January 1992
* Certificate of Marriage
* Two copies of the FSM's Certificate of Death
* Two letters from the Joint Forces Headquarters – Iowa Office of the Adjutant General, dated 6 April 2009 and 7 April 2009
* A letter from DFAS, Retired and Annuity Pay dated 21 August 2009
* Copy of a voided check and banking information
* W-4P (Withholding Certificate for Pension of Annuity Payments)
* DD Form 2656-7 (Verification for Survivor Annuity)
* Standard Form (SF) Form 1174 (EG) (General Information)


CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 27 September 1946.  He served as a member of the Iowa Army National (IAARNG) in an enlisted status from 2 February 1964 until  30 June 1975 until he was honorably discharged to accept an appointment as a commissioned officer in the IAARNG.

2.  On 19 June 1987, the Department of the Army and the Air Force National Guard Bureau, issued a Notification of Eligibility for Retired Pay at Age 60 
(20-Year Letter) to the FSM.  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.  

3.  On 12 August 1987, the FSM completed a DD Form 1883.  In this form, he indicated he was not married, but he had children and he elected:

* Children only coverage 
* An annuity based on the full amount of his retired pay
* Option C (Immediate Coverage)

4.  On 24 January 1991, the FSM married the applicant.  

5.  The FSM continued to serve as a member of the IAARNG until he was discharged and transferred to the U.S. Army Reserve Control Group (Retired) effective 2 February 1992.  He had completed 25 years of creditable service for retired pay purposes.

6.  On 16 May 2006, the U.S. Army Human Resources Command, St. Louis, Missouri, published Orders Number P05-685322 authorizing the FSM's placement on the Retired List, effective 27 September 2006.  

7.  The FSM died on 30 March 2009.  On his Certificate of Death, the applicant's name is listed as his wife.

8.  On 7 April 2009, the Joint Forces Headquarters – Iowa notified the applicant three documents needed to be completed to establish an SBP account:

* DD Form 2656-7
* W-4P
* SF 1199A (Direct Deposit Sign-up Form)

9.  The applicant completed the documents on 13 April 2009 and returned them as requested.  On 21 August 2009, she was notified by DFAS that the FSM's account reflects child only coverage for SBP and since they married on 24 January 1991, the FSM had 1 year from the date of marriage to notify his branch of service that he wanted RCSBP spouse coverage.  DFAS denied her application and suggested she apply to this Board.

10.  The applicant submits a DD Form 1883 completed by the FSM dated 13 January 1992:

* showing his status as married
* listing the applicant's name as his spouse
* indicating he had two dependent children
* electing SBP coverage for spouse and children
* electing Option C based on full amount of retired pay 

11.  The DD Form 1883 contains a stamp that shows the action was posted on the Standard Installation and Division Personnel Reporting System (SIDPERS) on 23 January 1992.

12.  The applicant also submits a DD Form 2656 completed by the FSM on 24 April 2006: 

* showing his status as married
* listing the applicant's name as his spouse
* electing SBP coverage for spouse only
* indicating he had no dependent children
* showing the applicant as his sole beneficiary
* electing coverage based on full gross pay amount

13.  On 15 May 2010, a staff analyst contacted DFAS for the purpose of obtaining additional information regarding the denial of the applicant's request for an RCSBP annuity.  The staff analyst was told that agency never received a copy the DD Form 1883 dated 13 January 1992.

14.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  To retain annuity eligibility, a surviving spouse cannot remarry before age 55.  If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce, or annulment.

15.  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:  

* Elect to decline enrollment and choose at age 60 whether to start SBP participation
* 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
* Elect that a beneficiary receive an annuity immediately upon their death if before age 60

16.  Normally an election, once made, is irrevocable except as provided for by law.  RCSBP/SBP elections are made by category, and beneficiaries are not designated by name.  Members who are not married at the time the original election is made may enroll a new spouse within 1 year of marriage.  

DISCUSSION AND CONCLUSIONS:

1.  The applicable records were readily accessible and the applicant’s case was not difficult to prove.  In August 1987, the FSM elected RCSBP children only coverage, option C. 

2.  He married the applicant on 24 January 1991 and he changed his election to spouse and children, option C.  The DD Form 1883 making his election change is dated 13 January 1992 and it is stamped as being posted in SIDPERS on 23 January 1992, which is within 1 year of his marriage to the applicant.

3.  The evidence of record shows that once his children became of age and were no longer considered as dependents he completed a DD Form 2656 showing that he had no dependent children and listed the applicant's name as his spouse and sole beneficiary.  He also elected coverage based on full gross pay.  

4.  The applicant was the FSM's spouse at the time he died and she timely notified the appropriate authorities of his death.  She completed a DD Form 1884 to receive an SBP annuity and she was notified that her application was denied.  For an unknown reason, the DD Form 1883 dated 13 January 1992 was never received and processed by the proper officials.

5.  The FSM's records should be corrected to show the FSM's DD Form 1883 was received and processed in a timely manner, and the applicant is entitled to a spouse annuity, provided she was/is otherwise eligible (e.g., not remarried before age 55), retroactive to the date of the FSM’s death.


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:

* showing that the DD Form 1883 completed by the FSM on 13 January 1992 was received and processed by the proper office in a timely manner
* showing the applicant applied for the SBP annuity on 1 April 2009
* paying to the applicant the SBP annuity based upon the above correction retroactive to the date of the FSM’s death providing she is otherwise eligible after deductions of all unpaid premiums




      _______ _   _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)                                         AR20090017757



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ABCMR Record of Proceedings (cont)                                         AR20090017757



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