PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           26 February 2002                   
	DOCKET NUMBER:   AR2001064791

	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. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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 his records be corrected to show he enrolled in the Survivor Benefit Plan (SBP) for spouse coverage.

3.  The applicant states that when he married his current spouse in 1983 he got her a military identification card.  No one asked her to sign an agreement giving up rights to the SBP.  She had joined the Foreign Service in April 1983 and he traveled with her to posts overseas.  She never relinquished her entitlement to the SBP and he maintains the mistake lies with the lack of communication between departments.  Certainly, the military recognizes their marriage and has done so since his spouse first got an identification card.  They want to pay the full cost of coverage, retroactive to the effective date of election, and ask that this oversight be corrected.

4.  The applicant’s military records show that he was born on 22 March 1919.  After having had prior enlisted service, he was commissioned a second lieutenant in the U. S. Army Reserve on 6 January 1943.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 16 September 1968.  

5.  The applicant made no Reserve Component SBP (RCSBP) election.  His Data for Payment of Retired Personnel, DA Form 4240 (which is partially illegible and is not reproducible) was completed on or about 1 March 1979.  It lists his marital status as single (he apparently divorced in 1974).  It appears that the SBP section may not have been completed.  Records at the Defense Finance and Accounting Service (DFAS) verify that he made no SBP election.

6.  The applicant remarried on 6 June 1983.

7.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

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.  An Open Season from 1 October 1978 – 31 March 1980 was declared for those who qualified for retired pay prior to 30 September 1978.

9.  Public Law 97-35, enacted 12 August 1981, established an Open Season from 1 October 1981 – 30 September 1982.  

10.  Public Law 101-189, enacted 29 November 1989, established an           Open Season to be conducted 1 October 1991 – 30 September 1992.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 – 31 March 1993.

11.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  

12.  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 spousal “entitlement” to the SBP until a member enrolls in the SBP.  The applicant first became eligible to enroll in the SBP when the RCSBP came into effect on 30 September 1978.  He did not enroll in the RCSBP and, when he became eligible to enroll in the standard SBP only five months later, he had no eligible beneficiary and did not enroll in the standard SBP.

2.  When the applicant married in June 1983, he had one year from the date of marriage to make a written request to enroll in the SBP.  Enrollment after retirement is not automatic.  It appears he did not inquire as to how to enroll in the SBP at the time of his marriage.  

3.  Shortly after the applicant’s marriage he traveled with her in her overseas assignments as a Foreign Service officer and most likely did not receive notice of the two or three Open Seasons available for SBP enrollment prior to their return to the States.  He is willing to pay the full cost of coverage.  In the interest of equity, it would be appropriate to show that he enrolled in the SBP for spouse coverage, full base amount during the 1999 – 2000 Open Season. 

4.  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 applicant requested enrollment in the SBP for spouse coverage, full base amount on 1 March 1999 and that his request was received and processed in a timely manner.

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

BOARD VOTE:  

__jhl___  __rjw___  __rtd___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Joann H. Langston
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001064791	
SUFFIX		
RECON		
DATE BOARDED	20020226	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.