PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 September 1999                   
	DOCKET NUMBER:   AR1999019114

	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:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Kathleen A. Newman		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, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he changed his Survivor Benefit Plan (SBP) election to make her his beneficiary.

3.  The applicant states that the FSM suffered a stroke within 10 days of their marriage.  With the effects of the stroke and the side effects of his medication, his memory was diminished, making it almost impossible for him to comply with any regulatory requirements.  She did not know about the one-year requirement, otherwise she would have seen that the change was accomplished.

4.  The FSM’s military records show that he was born on 9 March 1929.  He was inducted into the Army on 3 January 1951.  He entered the U. S. Army Reserve in November 1952.  In 1970, he elected to participate in the Retired Serviceman’s Family Protection Plan (RSFPP).  On 16 July 1975, he was notified that he was eligible for retired pay at age 60.  On 20 August 1979, he elected to participate in the Reserve Component SBP (RCSBP) for “spouse only” coverage, full base amount.  On 30 December 1988, when he applied for retired pay, he elected SBP “spouse only” coverage, full base amount (although this action was not required since his election into the RCSBP was an irrevocable action and rolled over into the SBP).  

5.  Defense Finance and Accounting Service (DFAS) records reflect that on        3 June 1992, the FSM divorced the spouse to whom he was married at the time he elected RCSBP/SBP coverage.  No one is currently receiving SBP benefits.

6.  On 25 August 1996, the FSM and the applicant married.  

7.  On 12 December 1997, the FSM died.

8.  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; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity. After age 60, the RCSBP costs are deducted from the member’s retired pay.

9.  Public Law 99-145, enacted 8 November 1985, permitted that a previously participating retiree upon remarriage may elect not to resume spouse coverage or to increase reduced coverage for the latter spouse (requiring a payback with interest of SBP premiums prior to first anniversary of remarriage).  Changes must be made prior to the first anniversary of remarriage or else the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date.

CONCLUSIONS:

1.  The Board concludes that an injustice occurred in this case.

2.   By law, unless a previously participating retiree who remarries elects not to resume spouse coverage prior to the first anniversary of remarriage, the previously suspended coverage resumes by default on the first day of the month following the first anniversary of the remarriage, with costs owed from that date.

3.  There is no evidence to show the FSM elected not to resume his spouse coverage after his remarriage in August 1996.  It should have automatically been resumed on 1 September 1997, the first day of the month following the first anniversary of the FSM’s remarriage.  It appears it was not automatically resumed only because the FSM became too ill within days of his remarriage to notify the Army he had remarried.

4.  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 the FSM’s SBP “spouse only” coverage was resumed retroactive to 1 September 1997, the first day of the month following the first anniversary of his marriage to the applicant and that the applicant be paid an annuity from 17 December 1997, the date of the FSM’s death.

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any SBP “spouse” costs owed.

BOARD VOTE:  

__jma___  __tsk___  __kan___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			James M. Alward
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999019114	
SUFFIX		
RECON		
DATE BOARDED	19990915	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.