IN THE CASE OF:  	  

		BOARD DATE:  2 June 2015	  

		DOCKET NUMBER:  AR20140019212 


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, the records of her deceased husband, a former service member (FSM), be corrected to show he elected in March 2009 Survivor Benefit Plan (SBP) coverage for spouse and payment of the SBP annuity based on his death.

2.  The applicant states:

* Army regulations in effect at the time the FSM submitted his retired pay application required the submission of a DD Form 2656 (Data For Payment of Retired Personnel)
* After an exhaustive search with the U.S. Army Human Resources Command (HRC), the Defense Finance and Accounting Service (DFAS) advised her that they could not find this document
* She was never counseled or provided any documentation to sign for or notarize to relinquish of the SBP
* She was married to the FSM continually from April 1993 until his death in January 2014
* She made a request to DFAS for the SBP annuity but she was denied 
* She remembers clearly discussing this issue with him and he was concerned that she be provided for in case his health deteriorated
* She and the FSM had no eligible dependents since his only child was 36 years of age in January 2009 when he filled out the form 

3.  The applicant provides:

* Marriage certificate
* Certificate of Death
* Denial letter from DFAS
* DD Form 1883 (SBP Election Certificate)
* Blank Retired pay Application Checklist
* Blank DD Form 2656
* Blank direct deposit form

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show he was born in September 1949. 

2.  Having had prior enlisted service in the U.S. Air Force, U.S. Coast Guard, and the West Virginia Army National Guard, the FSM was appointed as a Reserve warrant officer of the Army and executed an oath of office on 17 April 1985. 

3.  He served in a variety of assignments and he was promoted to chief warrant officer three (CW3). 

4.  On 14 July 1990, the U.S. Army Reserve Personnel Center issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

5.  On 12 September 1990, he completed a DD Form 1883.  He indicated he was not married but had a dependent child.  He listed the child as Anne, born in December 1972.  He elected “children only” Reserve Component SBP (RCSBP) coverage, Option C, based on the full amount.  The DD Form 1883 contains the statement “The decision he made with respect to participation in this SBP is a permanent irrevocable decision and he should consider his decision and its effect very carefully.” 

6.  He married Mary, the applicant, on 21 April 1993.  He did not request a change to his RCSBP election from "children only" to "spouse" coverage within 1 year of becoming eligible to make such a change.

7.  On 17 October 2001, the U.S. Army Reserve Personnel Command, St. Louis, published orders transferring him to the Retired Reserve effective 30 October 2001. 

8.  It appears the FSM submitted an application for retired pay at age 60 in or about December 2008.

9.  On 27 March 2009, HRC published Orders P03-903749 placing him on the Retired List in his retired grade of CW3 effective 12 September 2009, his 60th birthday. 

10.  His DFAS pay records show he had "child" SBP coverage and paid premiums as follows, based on the "child" coverage: 

* 9/12/2009 cost $7.22 
* 12/1/11 cost $7.48
* 12/1/12 cost $7.60
* 12/1/13 cost $7.72

11.  The FSM died on 14 January 2014.  He was 64 years of age at the time of death and his certificate of death listed Mary, the applicant, as the spouse and informant.

12.  It appears in February 2014, the applicant submitted a DD Form 2656-7 (Verification for Survivor Annuity) claiming the SBP annuity based on the death of her husband, the FSM.

13.  On 28 November 2014, by letter, DFAS notified the applicant that a review of the FSM’s military retired pay records reflects that he elected child coverage for the SBP.  The FSM did not elect spouse coverage under the RCSBP.

14.  The applicant provides a DD Form 2656, dated 31 December 2008.  This form shows: 

* the FSM indicated he was married to the applicant as of 15 May 1993
* he elected coverage for spouse only 
* he elected (level of coverage) coverage based on the threshold amount in effect on the date of retirement
* he listed the applicant’s name (Mary) in the insurable interest block
* he and a witness signed this form on 31 December 2008

15.  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.

16.  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: 

* Option A: elect to decline enrollment and choose at age 60 whether to start SBP participation
* Option 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
* Option C: elect that a beneficiary receive an annuity immediately upon their death if before age 60

Once a member elects either option B or option 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.

17.  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.  (The Defense Finance and Accounting Service (DFAS) interprets the phrasing of the first sentence of this section to read, “…is not married or has no dependent child."

DISCUSSION AND CONCLUSIONS:

1.  The FSM was not married when he completed his original DD Form 1883 on 12 September 1990 and elected to participate in the RCSBP for child only coverage.  His child, listed as Anne, was born in December 1972.  When he completed this form, he acknowledged the decision he made with respect to participation in this SBP is a permanent irrevocable decision and he should consider his decision and its effect very carefully.

2.  The FSM married his spouse, the applicant, in May 1993.  The law requires that if the FSM wanted to enroll his spouse in the RCSBP, he would have had to make a written and signed election, and received by the Secretary concerned within one year after the date on which that person marries.  The evidence of records do not show the FSM submitted such election within  one year of his marriage. 

3.  RCSBP participants do not make a new election once they turn age 60.  Their RCSBP election rolls over into the standard SBP.  Even though the applicant’s child is no longer a dependent, once RCSBP Option B or C is elected there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60.

4.  This means even if the FSM did in fact make an election in connection with his application with retired pay, such election would have been invalid because there was no Open Season in 2009.  Furthermore, the FSM turned 60 in September 2009.  He was placed on the Retired List when he turned 60 years of age.  Between that date and the date of death, in 2014, he paid "child" SBP premiums; he did not pay spouse SBP premiums.

5.  The decision to participate or decline participation in the RCSBP/SBP is a personal decision that is made based on each member's unique situation/needs. Here, the FSM never made a spouse election.  Therefore, when he died, his widow, the applicant, was not an eligible SBP beneficiary.  Regrettably, she is not entitled to the 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)                                         AR20140019212



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ABCMR Record of Proceedings (cont)                                         AR20140019212



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