IN THE CASE OF:	  

		BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100022618 


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 the records of her husband, a deceased retired former service member (FSM), be corrected to show he elected spouse coverage in the Reserve Component Survivor Benefit Plan (RCSBP) within 1 year of their marriage and the Survivor Benefit Plan (SBP) when he turned 60 years of age and began receiving retired pay.

2.  The applicant states her husband transferred to the Retired Reserve in 1979 and elected children-only coverage under the RCSBP because he was divorced. 
She and the FSM were married in 1988 and he elected spouse coverage for her within the first year of their marriage.  The Defense Finance and Accounting Service (DFAS) deducted the spouse coverage amount as shown on his leave and earnings statement.  She states when she applied for her SBP annuity, DFAS told her the FSM did not make the spouse election within 1 year of their marriage.

3.  The applicant states DFAS sent the FSM a letter in 1991 with a summary of his pay computation, but the SBP election was incorrect.  The FSM immediately contacted DFAS to correct the SBP election from children only to spouse (his youngest child, date of birth 16 January 1964, was no longer eligible for SBP).

4.  The applicant provides:

* the FSM's divorce degree
* the FSM's DD Form 1883 (Survivor Benefit Plan Election Certificate)
* the applicant and the FSM's marriage license
* the FSM's Joint Uniform Military Pay System (JUMPS)-Army Retired/Annuitant Pay Statement effective February 1991
* a letter from DFAS to the FSM, dated 1 February 1991
* the FSM's Retiree Account Statement (RAS)
* the FSM's death certificate
* an undated letter to the applicant from DFAS

CONSIDERATION OF EVIDENCE:

1.  The FSM divorced his first wife on 15 December 1977.

2.  On 28 September 1979, the FSM completed a DD Form 1883.  His date of birth is shown on the form as 16 August 1930.  He indicated he was not married at the time.  He elected coverage for children only based on the full amount of his retired pay under option C (immediate coverage).  His son's date of birth was entered as 16 January 1964.

3.  On 10 June 1988, the applicant and the FSM were married in Davis County, UT.

4.  At some point the FSM requested retired pay based on having turned age 60. 
A letter from DFAS, dated 1 February 1991, and his JUMPS-Army Retired/
Annuitant Pay Statement indicate SBP premiums were being deducted from his retired pay based on children-only coverage.

5.  The FSM's RAS with a new pay due as of 1 May 1995 shows the FSM elected to participate in the SBP and currently had spouse-only coverage based on the full amount of his retired pay.  The RAS shows spouse only costs of $24.26 and RCSBP costs of $20.09.  The spouse's date of birth is shown as 1 April 1941.

6.  The FSM passed away on 14 May 2010.  His death certificate lists the applicant as his spouse.

7.  The applicant submitted a Verification for Survivor Annuity for her entitlement to the SBP.  An undated letter from DFAS notified the applicant that the FSM did not have an eligible beneficiary for SBP at retirement.  DFAS stated the FSM did not request SBP within 1 year of their marriage.

8.  A search of the FSM's military records by the National Archives and Records Administration (NARA) revealed there were no military personnel records for the FSM available at NARA.

9.  An email from DFAS, dated 31 March 2011, states the FSM was paying premiums from the date of his retirement until the date of his death.

10.  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.

11.  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; or (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.  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 had the member died prior to age 60.

12.  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.  DFAS interprets the phrasing of the first sentence of this section to read, "…is not married or has no dependent child."

DISCUSSION AND CONCLUSIONS:

1.  The FSM was not married when he completed his original DD Form 1883 on 28 September 1979 and elected to participate in the RCSBP for child-only coverage based on the full amount of his retired pay.

2.  The FSM and the applicant were married on 10 June 1988.  The applicant states the FSM elected spouse coverage under the RCSBP within 1 year of their marriage.  At that time, his election would have been sent to the U.S. Army Human Resources Command because DFAS had not yet established a retired pay account due to his still being under the age of 60.  A response from NARA indicated there were no military records available for the FSM.

3.  The FSM's son was 23 years of age in 1987 and he was 26 years of age at the time the FSM turned age 60.  There is no evidence his son was disabled and incapable of self-support.  Therefore, his son was not an eligible beneficiary at the time the FSM requested retired pay.

4.  The applicant states her husband elected spouse coverage for her within the first year of their marriage.  The law does not require that a specific form be used to request RCSBP coverage after a post-retirement marriage, only that 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.

5.  RCSBP participants do not make a new election once they turn age 60.  Their RCSBP election rolls over into the standard SBP.  Because SBP premiums were being deducted from his retired pay for spouse-only coverage, it is reasonable to conclude the FSM elected spouse coverage under RCSBP within 1 year of his marriage and it rolled over to the standard SBP when he applied for retired pay.  The documents he filed to make his election are not available for review.  DFAS states he was paying SBP premiums from the date he started receiving retired pay until the date of his death.  Therefore, his intent to provide an SBP annuity for his wife is clear.

6.  Even though the applicant's child is no longer a dependent, once 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 had the member died prior to age 60.  Therefore, his child RCSBP costs may still be required to be paid.

7.  In view of the above, it would be equitable to correct the FSM's records to show he added spouse coverage to his RCSBP within 1 year of marriage based on the full amount of his retired pay.  Based on this correction his election for spouse coverage would roll over to the standard SBP when he applied for retired pay at age 60.

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 signed and submitted a written request to add spouse coverage based on the full amount of his retired pay to his RCSBP election and that his request was received by the Secretary concerned within 1 year of his marriage; and

	b.  paying to the applicant the SBP annuity due as a result of the above correction.



      _____________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)                                         AR20100022618



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ABCMR Record of Proceedings (cont)                                         AR20100022618



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