PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           9 August 2001                   
	DOCKET NUMBER:   AR2001057613

	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. Irene N. Wheelwright		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Ms. Gail J. Wire		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 Reserve Component Survivor Benefit Plan (RCSBP) to spouse and children coverage in a timely manner.

3.  The applicant states the FSM clearly named her as the SBP beneficiary on the Data for Payment of Retired Personnel, DD Form 2656.  During his 40 years of service he saved every piece of correspondence he had received from and sent to the Army.  She has gone through all his papers and has not found anything form the Army in response to the DD Form 2656 to contradict his listing her as the SBP beneficiary.  The Army waited until six years later and after his death to inform her that she is not eligible to receive the SBP because he failed to change the RCSBP within one year of their marriage.  

4.  The FSM’s military records show that he was born on 1 May 1936.  He enlisted in the U. S. Army Reserve on 8 March 1956.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 2 March 1979.  His Survivor Benefit Plan Election Certificate, DD Form 1883, is not available.  However, it appears that he was not married at the time but had dependent children and so elected children coverage only.

5.  On 3 December 1983, the FSM and the applicant married.  The FSM was transferred to the Individual Ready Reserve on 1 July 1986.  He applied for retired pay on 18 September 1995 by completing DD Form 2656.  At that time he completed items 28 and 29 electing spouse only SBP coverage, full base amount.  (The instructions instruct members who elected the RCSBP not to complete items 26 through 31).  The witness to the DD Form 2656 was an official at “First Union,” not a retirement services officer or a military official.  He died on 10 August 2000.

6.  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. 

7.  Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married or has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.  
CONCLUSIONS:

1.  The Board concludes that there is no Government error in this case.  The law requires that a person who is not married upon becoming eligible to participate in the SBP but who later marries may elect to participate in the SBP but the election must be written and received by the Secretary concerned within one year after the date on which that person marries.  The FSM married the applicant in1983 and did not elect to provide spouse SBP coverage until 1995.

2.  However, the Board recognizes that the FSM remarried only five years after the enactment of the RCSBP.  While five years would normally be enough time to make a new program an established program, the Board’s experience has been that this was not the case with the RCSBP.  Many reservists and many reserve units never learned the many details of the RCSBP.  The Board finds it credible that the FSM was not aware, in 1983, that he needed to change his RCSBP election to spouse and children coverage within one year of his remarriage.

3.  The Board finds it credible that the FSM did not read and/or understand the instructions when he completed the DD Form 2656.  It appears he did not receive guidance from a retirement services officer at the time he completed the form.  The Board also finds it credible that the FSM did not notice that spouse SBP premiums were not being deducted from his retired pay.  He should have noticed on his annual retiree account statement that RCSBP costs were being deducted but, especially since his children were probably no longer “dependents,” he probably did not notice that those costs were children costs and not spouse costs.  

4.  The Board also concludes that it was not fair of the Army not to notify the FSM that he had made an invalid SBP election in 1995.  Had they done so in a timely manner, he could have made other arrangements before his death to provide financial security for the applicant.

5.  The Board concludes that as a matter of equity the FSM’s records should be corrected to show he elected spouse coverage in a timely manner.  The evidence clearly shows that it was his intent to provide SBP protection for the applicant However, RCSBP/SBP spouse premiums were not paid from 1983 until the FSM’s death in 2000.  It would be appropriate to require that all due RCSBP/SBP premiums be paid before starting the SBP annuity.

6.  In view of the foregoing, the applicant’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 requested, in writing, that his RCSBP coverage be changed to spouse and children coverage, full base amount on       1 January 1984.  

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

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

BOARD VOTE:  

__inw___  __fne___  __gjw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001057613	
SUFFIX		
RECON		
DATE BOARDED	20010809	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.