PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           17 May 2000                   
	DOCKET NUMBER:   AR1998013284

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be corrected to show that he requested the change in his Survivor Benefit Plan (SBP) election from natural person with an insurable interest to spouse coverage within the required        one-year period.

3.  The applicant states that he faxed his marriage certificate with the requested change in his SBP election to the Defense Finance and Accounting Service Cleveland (DFAS-CL) on 16 July 1997.  When he discovered they never received the documents, he mailed them to DFAS-CL.  DFAS-CL then denied his request for change because the request was not received within one year of the date of his marriage.

4.  The applicant’s military records are not available.  The information contained herein was obtained from documents provided by him.

5.  The applicant was born on 21 December 1935.  On 14 January 1993, during an open enrollment season, he enrolled in the Reserve Component SBP (RCSBP) for natural person with an insurable interest (his adult son), full base amount, option C.  He was not married.

6.  On 29 October 1996, the applicant married.  On 15 July 1997, he wrote to DFAS-CL requesting his SBP beneficiary be changed due to his marriage.  On 16 July 1997, he faxed his request, his marriage license and marriage certificate to DFAS-CL.  Apparently, these documents were lost and on 28 January 1998 he mailed another request to DFAS-CL with his original request, fax confirmation sheet, marriage license and certificate.  (DFAS-CL later confirmed that the fax number to which he sent the documents was a DFAS-CL fax machine.)       DFAS-CL apparently denied his request for change because it was over a year since his marriage.

7.  Public Law 92-245, 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.  A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member.  This election may be changed to spouse or dependent child coverage.  If it is so changed, natural person with an insurable interest coverage automatically stops.

8.  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. 

9.  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.

CONCLUSIONS:

1.  The Board concludes that the applicant has provided sufficient evidence to show that he requested spouse SBP coverage within the one-year time period in the manner required by law.

2.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant requested that his SBP coverage be changed from natural person with an insurable interest coverage to spouse coverage on 16 July 1997.

2.  That DFAS refund to the applicant all overpaid SBP premiums due to the cost difference in natural person with insurable interest premiums and spouse premiums as a result of the aforementioned correction.

BOARD VOTE:  

__cmf___  __fe____  __rjw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Calvin M. Fowler
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1998013284	
SUFFIX		
RECON		
DATE BOARDED	20000317	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.