PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 October 2001                   
	DOCKET NUMBER:   AR2001055925

	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:

	Ms. Joann H. Langston		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Jose A. Martinez		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 enrolled in the Survivor Benefit Plan (SBP) for spouse coverage in a timely manner.

3.  The applicant states the FSM did not understand the SBP as it was presented to him when he retired or he never would have refused it.  Additionally, she never signed any form concurring in his declination.  He tried to correct this problem by enrolling in the SBP during the March 1999 Open Season.  He submitted the application in March 1999 but was told it was an invalid form.  He reapplied on the correct form on 6 May 1999.  The Defense Finance and Accounting Service (DFAS) stated their coverage would go into effect 1 June 1999 provided they paid a sum of $30,278.40.  The amount was paid in full.  The FSM died on          9 March 2001.  She was then informed that there was a 24-month waiting period before the SBP goes into effect.  Had the initial application been accepted, the effective date of coverage would have been 1 April 1999, making his death only three weeks short of the 24-month waiting period.

4.  The FSM’s military records show that after having had prior service, he enlisted in the Regular Army on 20 June 1962.  His enlistment physical for this period shows that he was married to the applicant at that time.

5.  The FSM retired on 1 July 1979.  At that time, he declined to enroll in the SBP.  The applicant signed the Data for Payment of Retired Army Personnel, DA Form 4240, concurring in his declination.

6.  On 11 March 1999, the FSM attempted to enroll in the SBP for spouse coverage, full base amount.  The form he used was apparently an invalid form.  DFAS so informed him and provided him the proper form.  The FSM completed the proper form on 6 May 1999.  DFAS received the form, informed the FSM that coverage would be put into effect on 1 June 1999, and that the buy-in premium would be $30,278.40.  The FSM submitted a down payment, the remainder due in 24 monthly deductions from his military retired pay.

7.  The FSM died on 9 March 2001.

8.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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.

9.  Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

10.  Public Law 101-189, enacted 29 November 1989, established an           Open Season to be conducted 1 October 1991 (but deferred to 1 April                1992) – 30 September 1992.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

11.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  Retirees must have paid monthly premiums starting on the date of enrollment and a one-time, lump sum enrollment premium.  The law directed that the following items be considered in calculating an individual’s lump sum Open Season cost:  The total amount of SBP premiums which would have been paid had the member enrolled at the first opportunity; plus interest; plus an additional amount calculated to protect the actuarial soundness of the Department of Defense Military Retirement Trust Fund.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

CONCLUSIONS:

1.  There is no Government error in this case.  The evidence of record shows that the applicant did concur in the FSM’s declination of the SBP in 1979.  The FSM also could have enrolled in the SBP during either the 1981 or the 1992 Open Season.

2.  However, the Board concludes that as a matter of equity the applicant should be granted the SBP annuity.  It was Congress’s intent in establishing the SBP to provide for those spouses who supported the military member for the majority of his or her military career.  The applicant was married to the FSM for the majority of his military career.  The FSM and the applicant attempted to enroll on            11 March 1999 during an Open Season and were willing to pay the $30,000 plus
enrollment fees involved.  Had the enrollment form used been accepted, the applicant would have been eligible for the SBP had the FSM survived for only three more weeks.  The Board cannot change the date of the FSM’s death; however, the Board concludes that it would be appropriate to correct his records to show that he enrolled in the SBP on 12 June 1979.

3.  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 completed the DA Form 4240 on 12 June 1979 and enrolled in the SBP for spouse coverage, full base amount.  

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

3.  That the applicant be paid an annuity based upon the FSM’s election to participate in the SBP retroactive to the date of his death.

BOARD VOTE:  

__jhl___  __mdm___  __jam___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Joann H. Langston
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001055925	
SUFFIX		
RECON		
DATE BOARDED	20011011	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.