IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100013584 


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 correction of the record of her deceased husband, a former service member (FSM), to show he elected spouse coverage based on full retired pay under the Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states the FSM elected children-only RCSBP coverage when he retired from the U.S. Army Reserve in 1987 and did not have a spouse at that time.  The younger child became ineligible for RCSBP in 1995, but paperwork wasn't completed to show the FSM had no eligible RCSBP beneficiaries.  She married the FSM on 27 January 2007, at which time they attempted to change the RCSBP election.  She was designated the "future" annuitant effective 27 January 2008.  The FSM passed away on 14 January 2010.  She has requested RCSBP payments, but the election has not been corrected.

3.  The applicant provides copies of:

* a letter from the FSM to the Defense Finance and Accounting Service (DFAS), dated 25 October 2007
* two DD Forms 2656-6 (SBP Election Change Certificate), dated 26 February and 25 October 2007
* a marriage certificate
* a printout of the FSM's RCSBP account information
* a certificate of death
* a DD Form 2656-7 (Verification for Survivor Annuity)


* an Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments)
* a Financial Management Service Form 2231 (Direct Deposit)

CONSIDERATION OF EVIDENCE:

1.  The FSM served in the Regular Army from 9 November 1965 to 13 August 1972.  Upon his release from active duty, he continued his military service in the U.S. Army Reserve, completing 20 years, 9 months, and 4 days of qualifying service for nonregular retirement.

2.  On 21 January 1983, the FSM was divorced.  The divorce decree is silent regarding the RCSBP.

3.  On 3 March 1987, the FSM was notified he had completed the required years of service to be eligible for retired pay at age 60 and was entitled to participate in the RCSBP.

4.  On 15 April 1987, the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate).  He indicated he was not married and had two dependent children with dates of birth of 14 July 1968 and 30 December 1973.  He elected children-only coverage, an annuity based on the full amount of his retired pay, and option C.

5.  On 18 April 2006, he completed a DD Form 2656 (Data for Payment of Retired Personnel).  In section V (Designation of Beneficiaries for Unpaid Retired Pay) he listed his future spouse.  In section IX (SBP Election) he indicated he elected not to participate in the SBP and that he did not have eligible dependents under the plan.

6.  Orders P01-780507 issued by the U.S. Army Human Resources Command, St. Louis, on 19 January 2007 placed the applicant on the Army of the United States Retired List effective 15 February 2007, his 60th birthday.

7.  A marriage certificate provided by the applicant shows she married the FSM on 27 January 2007.

8.  The applicant provides a letter from the FSM to the DFAS Cleveland Center, dated 25 October 2007, showing he requested a change to his SBP election to "no beneficiary" and a subsequent change to spouse coverage effective 27 January 2007, the date he married the applicant.

9.  Two DD Forms 2656-6 provided by the applicant, dated 26 February and 25 October 2007, were signed by the FSM in the presence of a witness and show he chose a change in coverage based on marriage, chose spouse-only coverage, and elected a level of coverage based on full retired pay.

10.  A certificate of death shows the FSM died on 14 January 2010.

11.  On 22 January 2010, the applicant completed a DD Form 2656-7 (Verification for Survivor Annuity) claiming benefits under the SBP and certifying she was the FSM's spouse and that the FSM did not have children under age 23 or incapacitated.

12.  On 30 November 2010, DFAS confirmed that no one is receiving an SBP annuity under the FSM's account.  DFAS also confirmed receipt of the DD Form 2656-6, dated 26 February 2007, but had no record of the form, dated 25 October 2007.

13.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members 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.  Since its creation, it has been subjected to a number of substantial legislative changes.

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 to include persons of insurable interest should the Reserve member die before reaching age 60.  Three options are available:

	a.  Option A allows Reserve members to decline enrollment upon notification of retirement eligibility and allows Reserve members to elect coverage at age 60.

	b.  Option B allows Reserve members to elect to provide an annuity beginning on the 60th anniversary of their birth should they die before age 60 or on the day after the date of death should they die after their 60th birthday.

	c.  Option C allows Reserve members to elect to provide an annuity immediately upon their death, whether before or after age 60.

15.  Public Law 95-397 further provides that once a member elects either option B or C in any category of coverage, that election is irrevocable.  Options 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 the RCSBP as it automatically rolls into SBP coverage.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member's retired pay.  If RCSBP option B or C is elected, there is a Reservist portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member die prior to age 60.

16.  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 1 year after the date on which that person marries or acquires that dependent child.

17.  DFAS interprets the first part of Title 10, U.S. Code, section 1448(a)(5), to mean "who is not married or has no dependent child."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of the FSM's records to show he elected spouse coverage based on full retired pay under the RCSBP is supported by the evidence.

2.  The evidence of record shows the FSM executed an SBP Election Certificate, electing children-only coverage based on the full amount.  He did not have a spouse at the time.

3.  The FSM and the applicant were married on 27 January 2007.  The law permitted him to add his spouse within 1 year of their marriage.  It is clear he attempted to add his spouse to the SBP in a timely fashion.  Therefore, the applicant is entitled to correction of the FSM's records to show he enrolled her in the SBP.

BOARD VOTE:

__X____  ___X____  ___X____   GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 the FSM made a timely request to cover his post-retirement spouse under the SBP within 1 year of his marriage on 27 January 2007;

	b.  showing his request was received and processed by the appropriate office in a timely manner; and

	c.  paying the applicant any annuity payments she is due retroactive to the FSM's death on 14 January 2010.



      _______ _   _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)                                         AR20100013584



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ABCMR Record of Proceedings (cont)                                         AR20100013584



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