IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110011908 


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 father of a deceased former service member (FSM), requests, in effect, correction of the FSM's DD Form 93 (Record of Emergency Data).  This request is interpreted as a request to establish Reserve Component Survivor Benefit Plan (RCSBP) beneficiary eligibility for the FSM's spouse.

2.  The applicant states the FSM was diagnosed with esophageal, abdomen, and bone cancer.  Because of his hospitalization, he had no way of updating his DD Form 93.  

3.  The applicant provides the following twelve enclosures:

* DD Form 93
* Judgment of Absolute Divorce
* Certificate of Death
* Marriage License (two copies)
* Memorandum from U.S. Army Human Resources Command to the FSM's spouse
* DD Form 2656-7 (Verification for Survivor Annuity)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 06-097-00008, 108th Division, dated 7 April 2006
* Memorandum for the FSM notifying him of his eligibility for retired pay at age 60, dated 8 June 2008
* AHRC Form 249-2 (Chronological Statement of Retirement Points)
* W-4P (Withholding Certificate for Pension or annuity Payments)
* Direct Deposit Sign-Up Form
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's ARPC-249-E shows he enlisted in the Delayed Entry Program (DEP) on 9 May 1975.  On 24 June 1975, he enlisted in Regular Army, where he served until 26 July 1984.  His DD Form 214 shows he attained the rank of staff sergeant, pay grade E-6 and had completed 9 years, 1 month, and 3 days of creditable active service.

3.  On 27 July 1984, the FSM enlisted in the U.S. Army Reserve (USAR).

4.  On 5 March 1988, the FSM married his first spouse.  This marriage ended by a final decree of divorce issued on 20 June 1997.

5.  On 8 June 2000, the Director, Personnel Actions and Services, U.S. Army Reserve Personnel Center, St. Louis, Missouri, notified the FSM that he had completed the required years of qualifying Reserve service and was eligible for retired pay at age 60.  This 20-year letter explained that he had a period of 90 days in which to elect participation in the RCSBP.  He was also informed that if he did not elect coverage and died prior to reaching 60 years of age, his survivors would not be entitled to survivor benefits.

6.  On 14 September 2007, the FSM married his second wife, who was still married to him at the time of his death.

7.  The FSM died on 21 April 2008, approximately 7 months after his last marriage.  He was 51 years of age.

8.  On 16 May 2011, the FSM's spouse completed a DD Form 2656-7 claiming a spousal benefit.  In a letter dated 23 May 2011, the Chief, Retired Pay Branch informed her that the FSM never made an election for RCSBP benefits and never applied for retired pay; therefore, she was not entitled to any benefits.
9.  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.

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.  If the member dies before reaching age 60, premiums are deducted from the annuity.

11.  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 one year after the date on which that person marries or acquires that dependent child.

12.  Department of Defense Financial Management Regulation (DODFMR), chapter 44, paragraph 4402 defines SBP beneficiary eligibility.  Paragraph 440201C states, in effect, that when the member did not have a spouse at retirement and did not elect insurable interest coverage and subsequently marries, the member must elect to provide spouse coverage within 1 year of the marriage.  Such spousal coverage is effective on the first anniversary of the marriage or birth of a child of that marriage, whichever is earlier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the FSM's records should be corrected to show that he elected RCSBP coverage for his spouse.

2.  The available evidence clearly shows the FSM was married less than a year prior to his death.  There is no evidence showing he made an RCSBP election either upon receipt of his 20-year letter when he had no spouse or that he attempted to enroll his new spouse in RCSBP after their marriage.

3.  However, even if the FSM had made an RCSBP election, his death less than a year after their marriage made the spouse ineligible to receive any benefits.

4.  In view of the above, the applicant's request should be denied.
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)                                         AR20110011908



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ABCMR Record of Proceedings (cont)                                         AR20110011908



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