PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 May 2002
	DOCKET NUMBER:   AR2002069754

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Paula Mokulis		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 that the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage, option C.

3.  The applicant states, in effect, that she and the FSM remarried after he completed his Survivor Benefit Plan Election Certificate, DD Form 1883.  He was never informed that he could enroll her in the RCSBP to be effective after one year of marriage.  She believes that had he known about this, he would have done so.

4.  The FSM’s military records show that he initially served in the Regular Army from 1968 – 1970.  He and the applicant first married on 25 July 1970.  He served in the U. S. Army Reserve until 1974.  He enlisted in the Army National Guard in February 1976 and served until July 1983.  He re-entered the U. S. Army Reserve in July 1983 until September 1984.  He reenlisted in the Army National Guard in September 1984.

5.  The FSM and the applicant divorced on 31 August 1993.  

6.  The FSM’s notification of eligibility for retired pay at age 60 (his 20-year letter) was prepared on 13 December 1996.  On 2 February 1997, he completed a DD Form 1883 indicating he was not married and had no dependent children and electing option A.

7.  The FSM and the applicant remarried on 24 March 1997.  He was discharged from the Army National Guard and transferred to the Retired Reserve on 3 May 1997.  He died on 13 August 2001.

8.  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.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.  If death occurs before age 60, SBP premiums are deducted from the annuity.  

9.  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.  There is no Government error in this case.  The evidence of record shows that the FSM was not married at the time he completed the DD Form 1883 and failed to enroll in the RCSBP within one year after he remarried the applicant.

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 over 20 years of his military career.

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 enrolled in the RCSBP for spouse coverage, option C, full base amount on 1 April 1997.

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

BOARD VOTE:  

_RVO___  ___JPI__  __PM____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		   Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2002069754	
SUFFIX		
RECON		
DATE BOARDED	2002/05/30	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.