IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100020185 


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 widow of a deceased former service member (FSM), requests correction of the FSM's records to show he elected spouse Survivor Benefit Plan (SBP) coverage and payment of the SBP annuity based on his death.

2.  The applicant states the FSM's selection for children SBP coverage should be removed as she was married to the FSM at the time.  She feels the clerk who was responsible for completing this form failed to provide the FSM with correct options under the SBP program.  She and the FSM always talked about a scenario where if anything should happen to him, she would receive his retired pay.  She understands the children are ineligible to receive the SBP benefit since they are 18 years or older.  Someone should have let the FSM know this and notify him of his alternatives.

3.  The applicant provides:

* the FSM's Retiree and Account Statement
* a letter to her Member of Congress
* a letter from The Adjutant General, State of Michigan, Department of Military and Veterans Affairs, Lansing to the applicant's Member of Congress
* a letter to her from a Member of Congress
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), for the period ending 31 March 1992
* FSM Certificate of Death
CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 4 October 1943.  

2.  He enlisted in the Michigan Army National Guard (MIARNG) on 7 December 1968.  He served through multiple extensions or reenlistments and he attained the rank/grade of staff sergeant (SSG)/E-6. 

3.  On 6 December 1987, the MIARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified the FSM he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

4.  On 8 December 1987, the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Form).  He indicated he was not married but he had dependent children.  He listed his children (Michael, born on 14 September 1967; Jeffery, born on 18 November 1969; and Amy, born on 24 May 1972).  He elected "children only" coverage, full amount, option C (immediate coverage), under the Reserve Component SBP (RCSBP).

5.  On 7 July 1990, the FSM and the applicant were married.  However, there is no indication he notified officials at the Defense Finance and Accounting Service (DFAS) of his marriage or that he requested a change of RCSBP coverage from children to spouse within one year of his marriage.

6.  On 31 March 1992, the FSM was honorably discharged from the ARNG and he was transferred to the Retired Reserve.  His NGB Form 22 shows he completed 29 years, 3 months, and 14 days of total service for pay.

7.  She provided a DD Form 2656 (Data for Payment of Retired Personnel), dated 30 September 2001.  This form shows the FSM indicated he was married to Carol (the applicant).  However, this form is a nullity because the applicant and her husband witnessed each other's signatures rather than getting a disinterested third-party witness.  He and/or his spouse (the applicant) completed the following blocks:

	a.  he did not mark any blocks in item 26 (Beneficiary Categories) but placed an "X" in the "I Do" block of "I elect Not to Participate in the SBP." 

	b.  he completed block 28 (Insurable Interest Beneficiary) by listing his wife's name, social security number, relationship, date of birth, and address.  

	c.  in Section XI (SBP Spouse Concurrence) (Required when member is married and elects children only coverage or does not elect full spouse coverage, or declines coverage), item 30 (I hereby concur with the SBP election made by my spouse.  I have received information that explains the options available and the effect of these options.  I know that retired pay stops on the day the retiree dies.  I have signed this statement of my free will), the applicant authenticated this form by placing her signature and date.  Additionally, the FSM placed his signature as witness.

	d.  in Section XII (Certification), the FSM placed his signature and date while his spouse, the applicant, placed her signature and date as a witness.

8.  She provided a second DD Form 2656, dated 31 January 2003.  This form shows the FSM indicated he was married to the applicant and elected spouse only SBP coverage based on the full amount. 

9.  His records also show he was placed on the Retired List in his retired rank/grade of SSG/E-6 on 4 October 2003, his 60th birthday.

10.  His Retiree and Account Statement as of 2 January 2008 shows he has children only SBP coverage based on the full amount.  The statement shows zero payment for the children cost of the SBP and $2.15 payment for the RCSBP cost.

11.  The FSM died on 14 December 2008.

12.  On 9 June 2010, subsequent to a letter to her Member of Congress, an official at the MIARNG stated at the time of the RCSBP election, the FSM elected his children as beneficiaries.  The FSM did not change his election within 1 year of his marriage and in doing so, he permanently closed the spousal election category.

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. 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, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for 

their survivors should they die before reaching age 60.  Three options were 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; or

	(c)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.

15.  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; the options automatically roll into SBP coverage.

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.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999-29 February 2000.  The retiree must have paid monthly premiums starting on the date of enrollment and a one-time, lump sum enrollment premium.  Extensive publicity was given in Army Echoes, issued several times a year to retirees and gray-area retirees to keep them abreast of items of interest to retirees. 

18.  The National Defense Authorization Act for Fiscal Year 2005 established an Open Season for enrollment to be conducted from 1 October 2005 through 30 September 2006.  The retiree must pay 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows upon receipt of his 20-year letter, the FSM executed a DD Form 1883 on 8 December 1987, electing "children only" coverage under option C (immediate coverage).  He did not have a spouse at the time.  

2.  He and the applicant were married some 3 years later on 7 July 1990.  The law permitted him to add his spouse within 1 year of their marriage.  He did not do so.  When he failed to add his spouse within 1 year of their marriage, he irrevocably forfeited future spouse coverage except during a Congressionally-approved open enrollment period.  The law established Open Seasons to be conducted from 1 March 1999 through 29 February 2000 and from 1 October 2005 through 30 September 2006, thus allowing the FSM two opportunities to enroll his spouse in the SBP.  He did not do so.  

3.  He appears to have completed a DD Form 2656 on 30 September 2001.  However, there was no open season in effect at the time he completed this form. Additionally, he appears to have declined coverage on this form and the applicant concurred with that decision.  In addition, this form contained an invalid SBP election.

4.  He also appears to have completed another DD Form 2656 on 31 January 2003, in conjunction with his retirement application; however, again there was no open season in effect at the time he completed this second form.  Therefore, the "spouse only" SBP election on this form was also invalid.

5.  The decision to enroll in or disenroll from the SBP/RCSBP is a personal decision made by the member and his/her family.  In this case, the FSM and applicant were married on 7 July 1990.  Having previously completed his DD Form 1883 for children coverage just 3 years earlier and still being in the MIARNG during the 1999 - 2000 Open Season, the FSM knew or should have known of the requirements to change his desired coverage or at least to inquire about adding his spouse had he decided to do so. 

6.  In view of the circumstances of this case, the applicant is not entitled to relief.

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 for correction of the records of the individual concerned.



      __________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)                                         AR20100020185



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ABCMR Record of Proceedings (cont)                                         AR20100020185



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