IN THE CASE OF:	 

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100026574 


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 former spouse of a deceased former service member (FSM), requests the FSM’s Reserve Component Survivor Benefit Plan (RCSBP) election be changed from spouse and children coverage to children only coverage.

2.  She states:

* the FSM’s RCSBP election was for spouse and children coverage
* she divorced the FSM, but his RCSBP election was not changed
* the FSM died on 29 May 2004
* she submitted paperwork to the Department of Veterans Affairs (VA) for death benefits in November 2005, but her claims were denied
* the Army National Guard was not aware of the FSM’s death

3.  She provides:

* the FSM’s Certificate of Death
* a DD Form 1883 (SBP Election Certificate)
* the FSM's Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* the FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* an Iowa District Court for Cerro Gordo County order fixing attorney’s fees
* their Decree of Dissolution of Marriage


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 FSM was born on 6 June 1952.  He enlisted in the Army National Guard on 27 May 1970.  He and the applicant married on 15 March 1983.

3.  The FSM was issued his 20-Year Letter on 7 June 1990.

4.  On 21 August 1990, the FSM completed a DD Form 1883 and elected to participate in the RCSBP for immediate spouse and children coverage, full base amount, option C.  The election form listed the applicant as his spouse and two dependent children born on 6 May 1984 (adopted son) and 30 December 1989 (daughter). 

5.  The FSM was discharged from the Army National Guard on 1 July 1993 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  He completed 23 years, 1 month, and 5 days of total service for pay.

6.  The FSM and the applicant divorced on 6 September 2000.  The divorce decree stated, in part, that “Each party shall keep any interest they presently have in their respective pension or retirement accounts.”

7.  The FSM died on 29 May 2004 at age 51.

8.  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.  

9.  Public Law 92-425 also provided that the term "dependent child" means a person who is unmarried; is under 18 years of age or at least 18 but under 


22 years of age and pursuing a full-time course of study in a high school, college, or comparable recognized educational institution; is incapable of self-support because of a mental or physical incapacity existing before the person's 18th birthday; or is the child of a person to whom the plan applies including an adopted child, a step or foster child, or a recognized natural child who lived with that person in a regular parent-child relationship.  

10.  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.  Once a member elects either option B or C in any category of coverage, that election is irrevocable.  

DISCUSSION AND CONCLUSIONS:

1.  The FSM enrolled in the RCSBP on 21 August 1990 and he elected spouse and children coverage.  He was married to the applicant and he had two dependent children at the time of his RCSBP election.

2.  The evidence of record shows the FSM and his spouse were divorced in September 2000.  In the divorce decree, the FSM and his spouse waived any interest in the other’s pensions.  

3.  The FSM died on 29 May 2004 at age 51.  His Certificate of Death indicates he was divorced.  His younger child (daughter) was 14 years old at the time of his death.  

4.  Although the portion of the FSM’s RCSBP election pertaining to spouse coverage was, in effect, suspended after their divorce, as a matter of law his two children remained dependent beneficiaries protected under the plan.  In fact, his younger child remained entitled to an annuity until at least 30 December 2007, the day she turned 18 years old, and possibly longer depending on whether she remained a full-time student.

5.  Based on the applicant’s statement, it appears she was confused about potential service-related benefits available to her children and initially applied to the Department of Veterans Affairs (DVA) for benefits rather than to the Army.  
When the DVA denied her application she considered the matter closed and only recently discovered that two different benefit systems were in play.
6.  It is therefore appropriate as a matter of equity to correct the FSM's record to show that she made a timely application for RCSBP on behalf of her children. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing the applicant applied for RCSBP benefits on behalf of her children in a timely manner;

	b.  showing the Defense Finance and Accounting Service (DFAS) timely received and processed her application; and

	c.  paying her eligible children any RCSBP annuity to which they may be entitled as a result of this correction.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the FSM's RCSBP coverage to children-only coverage.




      ____________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)                                         AR20100026574



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ABCMR Record of Proceedings (cont)                                         AR20100026574



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