PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            22 April 1999   
	DOCKET NUMBER:   AR1998013305

	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.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Thomas A. Pagan		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 the records of her deceased spouse, a former service member (FSM), be corrected to show he elected Survivor Benefit Plan (SBP) coverage for “spouse and children.”

3.  The applicant states that her spouse was improperly advised about electing “spouse and children” coverage.

4.  The FSM’s military records show that he was born on 7 September 1952.  He initially enlisted in the Regular Army on 22 March 1971.  He enlisted in the Army National Guard on 26 January 1974. 

5.  On 28 August 1992, the FSM received notification that he was eligible for retired pay at age 60 (“20-year letter”).  On 28 September 1992, the FSM completed DD Form 1883, Survivor Benefit Plan Election Certificate and elected to participate in the Reserve Component SBP (RCSBP) at “children only” coverage, option C, immediate coverage if he should die before age 60.  He was divorced at the time.  

6.  The FSM remarried on 21 April 1995.  His unit advised him to complete a new DD Form 1883 and to elect “spouse only” coverage, option C, since his children were no longer eligible beneficiaries and on 16 January 1996 he did so.  (However, the FSM acquired 4 step-children upon his remarriage.)

7.  The FSM died on 5 June 1996.

8.  On 23 December 1997, the Defense Finance and Accounting Service – Denver Center (DFAS-DE) informed the applicant that since the FSM’s original election was for “children only” coverage, the only legitimate option he could have later made was to increase his SBP coverage to “spouse and children.”

9. 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.  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.

10.  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 (and participate in SBP), 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.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive).

11.  Title 10, U. S. Code, section 1447 defines “dependent child” as a person who is unmarried; under 18 years of age or under 22 years of age and attending a full-time course of education; and is the child of a person to whom the Plan applies, including a step-child.

12.  In the processing of this case, an advisory opinion was obtained from the Retirement Team, U. S. Army Reserve Personnel Command (AR-PERSCOM).  That opinion noted that the FSM was improperly advised and that the available evidence shows that he did want his new wife and children covered by the insurance and annuities offered by the Army.  The opinion recommended approval of the applicant’s request and that AR-PERSCOM be directed to obtain the necessary documentation from her to ascertain any claim and that AR-PERSCOM certify those claims for payment.

13.  A copy of this opinion was provided to the applicant for comment/rebuttal.  She did not respond within the given time frame.

CONCLUSIONS:

1.  There is evidence of government administrative error in this case.  When the FSM initially elected “children only” SBP coverage, this was an irrevocable election.  Even though the children he had at the time of that election may have become ineligible, any children he acquired after that date, to include step-children, would also be covered by the SBP.  Therefore, his unit improperly advised him to submit a new form electing “spouse only” coverage.

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 on 16 September 1996 the FSM completed DD Form 1883, electing SBP coverage for “spouse and children,” full base amount, option C.

2.  That AR-PERSCOM obtain the necessary documentation from the applicant to ascertain any claim and certify those claims for payment.

BOARD VOTE:  

__INW___  __EB___  __TAP__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1998013305	
SUFFIX		
RECON		
DATE BOARDED	19990422	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.