BOARD DATE:	  21 August 2012

		DOCKET NUMBER:  AR20120003512 


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, in effect, payment of the Survivor Benefit Plan (SBP) annuity, based on the death of her husband, a former service member (FSM). 

2.  The applicant states she was unaware of the 90-day window to apply.  However, she tried to apply after his death but she was told she could not do so until his 60th birthday.  So, she waited until close to it.  She had been married to the FSM since 1983 and still would be if it weren't for his death.  Her English language is not very good and she did not know how to go about this. 

3.  The applicant provides:

* FSM's certificate of death
* Certificate of marriage
* DD Form 1883 (SBP Election Certificate)
* DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate)

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was born on 13 January 1952.

2.  He and the applicant were married on 7 May 1982.

3.  He served in the Regular Army from 27 November 1983 to 24 November 1976 and from 7 November 1978 to 9 November 1988.
4.  He enlisted in the Kentucky Army National Guard (KYARNG) on 16 August 1993.  He served in a variety of assignments and he attained the rank/grade of sergeant (SGT)/E-5.

5.  On 8 November 2000, the KYARNG published Orders 313-827 ordering his discharge from the ARNG and transfer to the Retired Reserve.  

6.  On 21 January 2001, the KYARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  

7.  On 27 February 2001, he completed a DD Form 1883.  He indicated he was married to the applicant and they had a dependent child (daughter, born on 22 November 1984).  He elected "children only" coverage, full amount, option C (immediate coverage), under the RCSBP.  His spouse, the applicant, concurred with his selection by placing her signature in the appropriate block.

8.  The FSM's official records also contain, and she submitted, a copy of a       DD Form 2656-5 (RCSBP), dated 17 February 2006.  This form also shows the FSM elected "children only" coverage, Option C, based on full retired pay.  The form is signed by the FSM and a witness but not by the spouse (applicant).

9.  The FSM died on 25 June 2007.  He was 55 years of age at the time.  The applicant is listed as his spouse on the death certificate.  Additionally, his daughter was 23 years of age at the time of death.

10.  According to the U.S. Army Human Resources Command (HRC) Integrated Web Services (IWS), in 2011 and 2012, the daughter and the applicant communicated with officials at HRC regarding the SBP annuity.  One entry, dated 1 February 2012, reads:  "sent denial to spouse.  Service member elected child only on the DD Form 1883."  Another entry dated on the same date reads "service member submitted DD Form 2656-6 to change from child only to insurable interest, child became too old.  DD Form 2656-6 is not valid; reasons spouse did not sign off and service member checked no or not married; death certificate states service member is married to [Applicant]." 

11.  References:

	a.  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.

	b.  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:

* elect to decline enrollment and choose at age 60 whether to start SBP participation
* 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
* 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; the options automatically roll into SBP coverage.

	c.  Title 10, U.S. Code, section 1447(11)(A) states dependent children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 22 if still in school.  A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 22 if a full time student).  

	d.  Title 10, U.S. Code, section 1448(a)(3) states a married person who is eligible to provide a standard annuity may not without the concurrence of the person's spouse elect not to participate in the SBP; to provide an annuity for the person's spouse at less than the maximum level; or to provide an annuity for a dependent child but not for the person's spouse.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows upon receipt of his 20-year letter, the FSM executed a DD Form 1883 on 27 February 2001, electing "children only" coverage under option C (immediate coverage).  His spouse - the applicant - concurred with his election by placing her signature in the appropriate block. 

2.  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, with the applicant's concurrence, elected "child" coverage for their daughter who was born on 22 November 1984.  

3.  Their daughter turned 22 years of age on 22 November 2006 and she was no longer an eligible beneficiary.  Regretfully, the FSM died on 25 June 2007.  As such, his daughter was not authorized an annuity.  

4.  The applicant's contention regarding the 90-day rule lacks merit as the FSM submitted his election with her concurrence within 90 days of receiving his       20-year letter. 

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested 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)                                         AR20120003512



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ABCMR Record of Proceedings (cont)                                         AR20120003512



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