IN THE CASE OF: 

		BOARD DATE: 8 July 2014

		DOCKET NUMBER:  AR20130017672 


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 spouse of a deceased former service member (FSM), requests correction of his records to show she is the beneficiary of his Survivor Benefit Plan (SBP).

2.  The applicant states that:

	a.  she married the FSM on 29 August 1981 and they remained married until his death on 25 June 2013;  

	b.  the FSM's naming of his former spouse as SBP beneficiary on 14 October 1987 from whom he had been divorced for a number of years would not have made any sense as both of his children had long since been emancipated and not dependent on either him or their mother (FSM's former spouse); and

	c.  the FSM's intent to name his then current spouse (Mary L.) is supported by his attempt to elect her as the SBP beneficiary.

3.  The applicant provides copies of:

* A letter from her counsel
* Her marriage license with the FSM
* FSM's Indiana State Certificate of Death
* 28 August 2013 Defense Finance and Accounting Service (DFAS) letter


CONSIDERATION OF EVIDENCE:

1.  The FSM's official record contains copies of:

	a.  an Office of the Adjutant General, U.S. Army Reserve (USAR) Components Personnel and Administration Center letter, Subject:  Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 14 July 1972;

	b.  a USAR, Retired Activities letter, dated 13 October 1987, showing the FSM's application for retired pay had been approved;

	c.  a 20 July 1987 DA Form 4240 (Data for Payment of Retired Pay Army Personnel) showing:

		(1)  his date of birth as 14 October 1927;

		(2)  he indicated he was married with no dependent children and the name of his spouse was Mary; 

		(3)  he elected SBP coverage for spouse only at full retirement pay; 

		(4)  a NOTE at the bottom of the form stating that his SBP election is permanently irrevocable; and

		(5)  in the Remarks/Additional Information block he indicated "For SBP DATE:  Divorced 17 Apr 78 from Dorothy, Married 29 August 81 to Mary (present spouse)."  A copy of the marriage license with Mary was included.

	d.  USAR Personnel Center Orders P-002812, dated 6 October 1987, showing he was placed on the retired list on 14 October 1987.

2.  An email note from the Army Liaison, Retired and Annuity Pay, DFAS, indicates that their files department cannot locate any SBP information on the FSM. 

3.  The applicant provides a copy of a 28 August 2013 DFAS Retired and Annuitant Pay letter, that states a review of the FSM's military retired pay account shows that on 14 October 1987 he elected to participate under the Reserve Component SBP (RCSBP), naming his former spouse as the eligible beneficiary.  On 14 October 1987, he also attempted to elect the applicant to be the eligible 


beneficiary under the SBP.  However, his RCSPB election in which he elected his former spouse supersedes the election for spouse coverage.  As a result, the applicant is not entitled to receive an annuity under the SBP.  It also tells her to apply to the Board for Corrections of Air Force Records.

4.  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.  Elections are made by category, not by name; an election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse coverage.

5.  Public Law 95-397, the Reserve Component SBP, 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. 

6.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.   The applicant requests correction of her deceased spouse's records to show she is the beneficiary of his SBP.

2.  She provides a copy of a 28 August 2013 DFAS Retired and Annuitant Pay letter, that states that on 14 October 1987 the FSM elected to participate under the RCSBP, naming his former spouse as the eligible beneficiary.  On 14 October 1987, he also attempted to elect the applicant to be the eligible beneficiary under the SBP.  However, his RCSPB election in which he elected his former spouse supersedes the election for spouse coverage.  As a result, the applicant is not entitled to receive an annuity under the SBP program.  



3.  This letter is, on its face, inaccurate and of no evidentiary value.  It recites to two elections supposedly made on the same day, which happens to have been the FSM's 60th birthday, and directs the applicant, the widow of an Army officer, to apply to the Air Force Board of Corrections for additional help.  Further, any election the FSM might have made on that date would have been an SBP election not an RCSBP election because he had already reached age 60 and no longer fell in the gray area the RCSBP was designed to cover.  Accordingly, any presumption of regularity that might otherwise attach has been overcome.

4.  The FSM's record contains a 20 July 1987 DA Form 4240 showing he was married to the applicant and had divorced his former spouse on 17 April 1978.  He elected SBP coverage for spouse only at full retirement pay.  A copy of his marriage license with the applicant was included.  The note at the bottom of the form was in all likelihood the FSM’s attempt to clarify that the applicant, not Dorothy, was the spouse for whom he was electing coverage.  

5.  In light of the above, the weight of the evidence in this case shows that the FSM did, in fact, elect spouse coverage for the applicant’s benefit.  Accordingly, the applicant is entitled to the requested relief.  Any unpaid premiums will need to be recouped from the annuity.

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.  Therefore, the Board recommends that all Department of the Army records of the individual concerned be corrected to show 
that on 20 July 1987, he elected SBP spouse coverage and that election was timely received and processed by the appropriate authorities with an effective 


date of 14 October 1987.  Any unpaid premiums should be recouped from the annuity.



      ____________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)                                         AR2002076477



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ABCMR Record of Proceedings (cont)                                         AR20130017672



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