IN THE CASE OF:	  

		BOARD DATE:  25 February 2014

		DOCKET NUMBER:  AR20130007260 


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, as the widow of a deceased former service member (FSM), requests correction of the FSM's military records to show he changed his Survivor Benefit Plan (SBP) coverage to spouse coverage during an Open Season from 1992 through 1993. 

2.  She states that in a letter, dated 10 May 1989, the FSM requested to add her to his SBP coverage as the spouse beneficiary.  Since this request was not made within 1 year of their marriage, it was invalid.  However, despite the invalid request, the FSM's election for SBP spouse coverage was erroneously honored.  If the FSM had been aware of the invalid request, he could have correctly elected SBP for spouse coverage during an Open Season during April 1992 to March 1993, March 1999 to February 2000, or 1 October 2005 to 30 September 2006.

3.  She provides two letters from DFAS and the FSM's death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM initially enlisted in the Regular Army on 8 January 1958.  

2.  On 6 August 1985, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel) and elected SBP coverage for dependent children only at full base amount.  He placed an "X" in the box "Single" indicating he was not married at the time of his election.  In Part II (Beneficiaries for Unpaid Retired Pay or Gratuity Pay) of this form, the FSM listed his ex-spouse (P-----) as beneficiary for unpaid retired pay and his mother as beneficiary for gratuity pay.  In Part III (SBP election), he listed his son (B------) as his dependent child with a date of birth of 31 July 1970.

3.  On 31 August 1985, he retired after completing 20 years of active service.  

4.  The FSM and the applicant were married on 24 December 1987.  His service record is void of evidence which shows he added spouse coverage to his existing child coverage within 1 year of his marriage.  

5.  Information obtained from the Defense Finance and Accounting Service (DFAS) revealed the FSM submitted a handwritten letter, dated 10 May 1989, requesting his SBP beneficiary be changed to add his wife, M---- [the applicant].  Although the request was outside the 12-month window for submission, DFAS honored the request and deducted the appropriate premiums.

6.  The FSM died on 17 May 2010.  His death certificate shows his marital status as "M" indicating married, and lists the applicant as his spouse.  Upon request DFAS paid the applicant SBP until they later realized a mistake had been made.  DFAS conducted an audit of the pay records and decided to terminate the applicant's SBP entitlements without recoupment.  

7.  Public Law 92-425, the SBP, enacted 21 September 1972, 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.  However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

8.  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.  

9.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully reviewed.  There is sufficient evidence on which to grant the relief requested.

2.  The FSM retired on 31 August 1985 and he elected dependent child only coverage.  He was not married at the time of his SBP initial election.

3.  The FSM and the applicant were married on 24 December 1987.  

4.  The available evidence shows the FSM made a written request to add the applicant to his SBP coverage.  Although this election was not made within 
1 year of their marriage, DFAS chose to honor the request and deducted premiums from his retired pay.  

5.  The FSM died on 17 May 2010.  His death certificate indicates he was married to the applicant at time of his death.

6.  Because the FSM's election of spouse coverage was late, it was indeed invalid.  However, DFAS honored the election and deducted premiums up until the FSM's death.  This mistake by DFAS led the FSM to believe his election was valid and effectively deprived him of the opportunity to properly enroll during any of the three Open Season enrollment periods that occurred after his invalid election and before his death or make other arrangements to provide for the applicant.  

7.  The applicant and the FSM reasonably relied on the actions of DFAS to their detriment.  Accordingly, it is appropriate to correct his record, as a matter of equity, to show that he added spouse coverage within 1 year of his marriage.  

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 had requested that SBP spouse coverage be added in a timely manner and
	b.  paying the applicant SBP annuity to which she is entitled as a result of this 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)                                         AR20130007260





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ABCMR Record of Proceedings (cont)                                         AR20130007260



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