PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 January 2001                   
	DOCKET NUMBER:   AR2000045048

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas E. O’Shaughnessy, Jr.		Member	
	Ms. Brenda F. Hirschi		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 she be paid a Survivor Benefit Plan (SBP) annuity based upon the Reserve Component SBP (RCSBP) election of her deceased spouse, a former service member (FSM).  She states that the FSM was married at the time he enrolled in the RCSBP but he was a widower at the time he turned age 60 and so declined SBP coverage.  She and the FSM married about a year later.  She does not know why he did not change his election.

3.  The FSM’s military records show that he was born on 13 September 1930.  After having had prior active service, he entered the U. S. Army Reserve in 1957.

4.  On 20 September 1979, the FSM enrolled in the RCSBP for spouse coverage, full base amount, option C.  This was a permanent, irrevocable election.

5.  The FSM’s spouse died in 1984.

6.  On 22 March 1990, the FSM completed a Data for Payment of Retired Army Personnel, DA Form 4240.  On this form, he checked that he was not married and elected to decline SBP coverage.

7.  The FSM and the applicant married on 27 December 1991.  The FSM died on 10 March 2000.

8.  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.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

9.  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.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  Once a member elects either Options B or 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 – it automatically rolls into SBP coverage.  If 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 should the member have died prior to age 60.

10.  Public Law 99-145, enacted 8 November 1985, permitted a previously participating retiree upon remarriage to 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 FSM made an irrevocable RCSBP election of spouse coverage in 1979.  When his first spouse died in 1984, his obligation to pay spouse RCSBP costs would have been suspended, not cancelled.  He was not authorized to make a new SBP election when he turned age 60.  There is no evidence to show he requested that spouse participation not be resumed, so it should have automatically been resumed effective the first anniversary of his remarriage to the applicant provided, of course, that he notified the Defense Finance and Accounting Service (DFAS) that he had remarried. 

2.  In view of the foregoing, the FSM’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the FSM’s RCSBP spouse coverage was resumed retroactive to the first anniversary of his marriage to the applicant and that the applicant be paid an annuity from 10 March 2000, the date of the FSM’s death.

2.  That the applicant be advised that DFAS will be instructed to collect any RCSBP/SBP spouse costs owed.

BOARD VOTE:  

__aao___  __teo___  __bfh___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000045048	
SUFFIX		
RECON		
DATE BOARDED	20010130	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.