PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 February 2000                   
	DOCKET NUMBER:   AR1999032688

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern, III		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 elected spouse only Reserve Component Survivor Benefit Plan (RCSBP) coverage.

3.  The applicant states that when they got married they were not told he had to change his RCSBP coverage from insurable interest to spouse only coverage, option C.  She realizes that with this correction her annuity would drop at age 62 but she needs more money at this time in her life.  (In a phone conversation with her on 28 December 1999, the applicant states that she has not remarried.)

4.  The FSM’s military records are not available.  The information contained herein was obtained from documents provided by the applicant.

5.  The FSM was born on 9 November 1941.  He enlisted in the Army National Guard on 23 February 1960.  His 20-year letter (notification of eligibility to receive retired pay at age 60) is dated 17 March 1983.  At this time he elected to participate in the RCSBP for insurable interest coverage.  The applicant was the person with insurable interest.  The FSM and the applicant married in August 1983.  There is no evidence of record to show he changed his RCSBP coverage to spouse coverage.  

6.  The FSM died on 24 August 1997.

7.  The applicant is currently receiving an RCSBP annuity payable under person with natural insurable interest.  In May 1999, the Defense Finance and Accounting Service (DFAS) notified her that due to a miscalculation when her annuity was established she owes a debt of $207.00.

8.  Public Law 92-245, 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.  A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member.  Such a person who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be made in writing and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.

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 occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.

CONCLUSIONS:

1.  The Board concludes that an injustice occurred in this case.  At the time the FSM elected to enroll in the RCSBP in 1983, the program was less than 5 years old and the reserve components were still learning the details of the program.  The Board concludes that it is reasonable to presume the FSM had not been properly counseled to change his RCSBP coverage upon his marriage, since the name of the beneficiary remained the same although the category of that beneficiary changed.  

2.  The applicant is claiming a current hardship due to the reduced annuity the insurable interest coverage is providing her versus what spouse coverage would provide her and the Board notes that she understands a spouse annuity would be reduced upon her reaching age 62.  

3.  In view of the foregoing, it would be in the interest of justice to correct the FSM’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  showing the FSM changed his RCSBP coverage to spouse only, option C (the base amount to remain the same as his original election) effective the first anniversary of their marriage;

     b.  refunding to the applicant any difference between insurable interest coverage and spouse coverage premiums as allowed by law; and

     c.  paying to the applicant an annuity based on spouse coverage effective      24 August 1997, the date of the FSM’s death.

2.  That DFAS be directed to audit the applicant’s account and adjust as appropriate the $207.00 debt now owed in light of the aforementioned corrections.

BOARD VOTE:  

__mkp___  __gdp___  __tbr___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Margaret K. Patterson
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999032688	
SUFFIX		
RECON		
DATE BOARDED	20000211	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.