IN THE CASE OF:	

		BOARD DATE:	  08 April 2010

		DOCKET NUMBER:  AR20100009775 


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 his current spouse be granted annuity coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states that he previously tried unsuccessfully to activate SBP coverage for his current spouse but was told he did not submit sufficient documentation.  He was remarried on 31 August 1999 and requested his new spouse, F---- S--, be covered under the SBP.  In February 2000, he submitted a DD Form 1882 (Survivor Benefit Plan Election Change) requesting his SBP beneficiary be changed to his current spouse.  He thought his request was acted upon and that no further action was required from him.  When he received his Retiree Account Statement in April 2007, he noticed no SBP election was reflected on his account.  In July 2008, he discovered that the change he requested had not been implemented and his spouse was not covered.

3.  The applicant provides a copy of a stipulation for divorce, dated 29 May 1997; a copy of his divorce decree, dated 21 July 1997; a copy of his current certificate of marriage, dated 29 August 1999; a copy of his DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 22 September 1989; a copy of his DD Form 1882, dated 23 February 2000; a copy of a letter, dated 2 March 2000 to the U.S. Army Reserve Personnel Command (AR-PERSCOM), St. Louis, MO; a copy of his previous application to this Board, dated 25 July 2008; and a copy of his Retiree Account Statement, dated 5 April 2007.



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 27 January 1947 and initially entered military service on 8 August 1969.  He served through multiple extensions or reenlistments with the Iowa Army National Guard (IAARNG) and attained the rank/grade of staff sergeant (SSG)/E-6.

3.  On 15 August 1989, Headquarters, IAARNG, Office of the Adjutant General, Johnston, IA, issued him a Notification of Eligibility for Retired Pay at Age 60 [commonly known as the 20-year letter].  This letter notified him he had completed the required years of service and would be eligible for retired pay upon application at age 60.

4.  On 2 September 1989, he married his first wife, J----- A--.

5.  On 22 September 1989, he completed a DD Form 1883.  He indicated he was married to J----- A-- and elected "spouse only" coverage, full amount, Option C, under the Reserve Component Survivor Benefit Plan (RCSBP).  He and his spouse authenticated this form by placing their signatures and dates in the appropriate section.

6.  On 29 May 1997, he filed a petition in the Iowa District Court for the dissolution of his marriage to J----- A--.  His petition contained a stipulation wherein he and his wife agreed to the division of their property.  This stipulation is silent with regard to the SBP.

7.  On 21 July 1997, the Iowa District Court approved the dissolution of marriage and its associated stipulation.


8.  On 30 September 1997, he was honorably discharged from the ARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserve).  This was apparently an active duty retirement.

9.  On 31 August 1999, he married his current wife F---- S--.

10.  On 23 February 2000, he completed a DD Form 1882.  He indicated he wished to change his SBP coverage as a result of his remarriage and listed F---- S-- as his spouse.

11.  On 2 March 2000, by letter, he notified officials at the AR-PERSCOM, St. Louis, of his change of beneficiary from J----- A-- to F---- S--.  He also enclosed copies of his divorce decree and marriage certificate.

12.  On 27 January 2007, he was retired and placed on the Retired List in his retired grade of SSG/E-6.  His NGB Form 23a (Army National Guard Current Annual Statement), dated 28 September 2006, shows he completed over 20 years of active service. 

13.  His May 2007 Retiree Account Statement indicates that no SBP election is reflected on his account.

14.  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. An election, once made, was irrevocable except in certain circumstances.  This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the Retired List.

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:  (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.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his current spouse should be granted annuity coverage under the SBP.

2.  The evidence of record shows upon receiving his 20-year letter in 1989, he submitted a DD Form 1883 wherein he elected spouse only coverage based on the full amount under Option C of the RCSBP.

3.  He and his first spouse were divorced in July 1997.  This divorce decree is silent with regard to the SBP.  Additionally, there is no evidence he made an election to change SBP coverage from spouse to former spouse within one year of the date of the divorce or his first spouse made a deemed election to the DFAS-Retired Pay Office within one year of her divorce.  In effect, he continued to have spouse coverage until he retired from active duty in October 1997.  The standard SBP overrides the RCSBP, and since the applicant had no eligible spouse in October 1997 his RCSBP spouse coverage did not roll over into the standard SBP.

4.  The applicant remarried in August 1999.  It appears he attempted to enroll   his spouse in the SBP when he completed the DD Form 1882 in February 2000.  For an unknown reason, this document did not reach DFAS.  Nevertheless, his February 2000 DD Form 1882 is accepted as his attempt to add spouse coverage within 1 year of his post-retirement marriage. 

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 he accurately completed the DD Form 1882 on 23 February 2000, electing to change his SBP coverage to spouse coverage based on full base amount,

	b.  showing that DFAS timely received and processed his DD Form 1882, and

	c.  having DFAS deduct from his retired pay any SBP costs due as a result of these corrections.




      __________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)                                         AR20100009775



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ABCMR Record of Proceedings (cont)                                         AR20100009775



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