MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 September 1998                                      
	DOCKET NUMBER:   AC98-06660

	I certify that hereinafter is recorded the record of consideration 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	
	Mr. Raymond V. O’Connor, Jr. 		Member	
	Mr. James M. Alward 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That she be granted a Survivor Benefit Plan (SBP) annuity based upon the SBP election of her spouse, a former service member (FSM).

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  In effect, that the applicant was denied SBP benefits because she was not married to the FSM for one year prior to his death.  Counsel does not dispute this.  However, the applicant was eligible for SBP benefits as a natural person with insurable interest based upon a DD Form 1883 completed by the FSM prior to their marriage.  It seems unjust and illogical that the FSM’s wish to provide for the applicant should be denied because they decided to consummate their five-year relationship by marriage.  

EVIDENCE OF RECORD:  The FSM’s military records are not available.  Information contained herein was obtained from alternate sources.

He was born on 30 April 1941.  He enlisted in the Army National Guard on 1 May 1957 and had continuous service until his death.

On 26 January 1979, the FSM was notified that he completed the required years of service to be eligible for retired pay upon application at age 60.

On 31 August 1979, the FSM completed DD Form 1883, SBP Election Certificate, electing coverage of spouse and children, option C (immediate coverage should he die before age 60) under the Reserve Component Survivor Benefit Plan (RCSBP).

On 14 July 1992, the FSM and his first spouse were divorced.  

On 10 August 1992, the FSM completed another DD Form 1883, apparently attempting to voluntarily convert his spouse and children participation to former spouse and children, by listing his former spouse in the spouse block (as no former spouse block existed on the form).

On 30 August 1995, the Superior Court of New Jersey ordered his spouse to relinquish her entire interest in the FSM’s National Guard pension.

On 6 February 1996, the FSM completed another DD Form 1883 designating his fiancee (and present spouse) as his SBP beneficiary.  He did not list his children on this form, possibly because his youngest child was then 19 years old.
On 28 April 1996, the FSM and his present spouse married and on 29 April 1996 he completed yet another DD Form 1883 electing SBP spouse only coverage for her.  

On 6 July 1996, the FSM died.

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.  Elections are made by category and changes in SBP options are not authorized except in specific instances or authorized by law.  A person who is not married and does not have a dependent child upon becoming eligible to participate in the Plan may elect to provide an annuity under the Plan to a natural person with an insurable interest in that person.

Public Law 95-397, the RCSBP, dated 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.

In the processing of this case, a staff advisory opinion was obtained from the Headquarters Army Retirement Services, which recommended the applicant’s request be disapproved.  The opinion states the FSM did not have the option, by law, to make an insurable interest election, having previously elected spouse and children coverage.  Another bar to insurable interest coverage was the fact that, although he no longer had a spouse in 1996, he did have child coverage in effect.  Plus, Title 10’s one-year marriage requirement was not fulfilled.

Conversation with the Army Reserve Personnel Command on 16 July 1998 indicated that there is no record of a DD Form 1883 dated 6 February 1996 on file.  It either was never received or it was received and returned without action.

Conversation with the Defense Finance and Accounting Service - Denver on     21 September 1998 shows that no one is receiving the FSM’s annuity benefit.

The applicant was forwarded a copy of the opinion for rebuttal.  Two extensions were given but no rebuttal has been received.

DISCUSSION:  Considering all the evidence, allegations and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The FSM’s SBP election was properly made at the time the applicant enrolled in 1979.  He elected spouse and children coverage; this was a permanent election of those two categories that forever barred his changing his election to natural person with an insurable interest.  

3.  He was also barred from electing natural person with an insurable interest coverage because at the time he became eligible to participate in SBP, he was married and had dependent children.

4.  Because of the above two factors, the FSM’s SBP election of 6 February 1996 was invalid, contrary to law and therefore the applicant was not eligible for SBP benefits at that time.

5.  The FSM made a valid change to his SBP when he remarried and reactivated his spouse coverage on 29 April 1996; however, because he died in July 1996 the one-year marriage requirement was not fulfilled.

6.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT 

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                                    Loren G. Harrell
                      		               Director