PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 April 2002                   
	DOCKET NUMBER:   AR2001066198

	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	
	Ms. Melinda M. Darby		Member	
	Mr. John T. Meixell		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 Reserve Component Survivor Benefit Plan (RCSBP) election of her deceased father, a former service member (FSM), be changed to show he elected spouse and children coverage.

3.  The applicant states that her father was under the impression that the beneficiary card from the U. S. Army Reserve Personnel Command (AR-PERSCOM) that he filled out changed his SBP beneficiary to his youngest daughter, M___.  Her father and B___ lived together for less than one year.  When B___ left the applicant’s father, she moved away and did not keep in touch.  Before he passed away, the FSM’s concern was his 10-year old daughter.  The applicant was awarded custody of M___, her sister, on 5 July 2001.  The Retirement Services Noncommissioned Officer for the Tennessee Army National Guard states that she believes the FSM was not properly counseled as to how inexpensive coverage for his daughter would have been and on how to change his Survivor Benefit Plan Election Certificate, DD Form 1883, upon a change of dependency (such as divorce).

4.  The FSM’s military records show that he was born on 1 July 1940.  After having had prior service, he enlisted in the Army National Guard on 20 March 1981.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is not available.  His Record of Emergency Data, DD Form 93, dated 4 February 1995 shows he was divorced with three children, M___ being the only minor child (born 5 October 1990).

5.  On 11 September 1996, the FSM completed a DD Form 1883.  He elected to participate in the RCSBP for spouse only coverage, full base amount, option C.  Section II states, “IMPORTANT:  The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully.”  Section III indicated he was married to B___ with a date of marriage of 2 December 1996.

6.  On 19 May 1998, the FSM divorced B___.  Only one page of the divorce decree is available.  Additional documents obtained from the Defense Finance and Accounting Service (DFAS) relate only to child support which M___’s mother was ordered to pay.  

7.  On 4 August 2000, the FSM noted that his DFAS-CL 7220-148 listed his SBP coverage type as former spouse.  He informed DFAS-Cleveland Center (DFAS-CL) that this was incorrect and the correct coverage type should show his daughter, M___, as beneficiary.  He informed DFAS-CL that he previously submitted this change in 1999.

8.  The FSM died on 16 December 2000.

9.  Although as of 19 March 2002 records at DFAS still indicate that the FSM’s former spouse was his SBP beneficiary, they did not have any divorce documents showing the SBP was awarded to her and she has not submitted a claim for the annuity.

10.  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.  Elections are made by category, not by name.  Changes in SBP options are not authorized except in specific instances or authorized by law.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity.

11.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses for retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

12.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

13.  The 1999 SBP Counselor Training Manual gave samples of SBP costs.  It noted that when the option of spouse and children is elected, the spouse is the primary beneficiary and that the child cost is added to the spouse cost and is small, based upon the member’s, spouse’s, and youngest child’s age.  In a given example where the member’s age was 44, the spouse’s age was 41, and the youngest child’s age was 12, the cost for a base amount of $1,000 was $65 for spouse only coverage and $65.41 for spouse and children coverage.

CONCLUSIONS:

1.  The Board notes that it has received no evidence, either from the applicant or from DFAS, to verify that the FSM’s former spouse B___ is eligible for the SBP.  DFAS does not have a divorce decree awarding the SBP to her and they have no record of her submitting a claim for the annuity.  The Board also notes that there is a discrepancy on the DD From 1883.  The FSM completed the form on           11 September 1996 yet he listed his date of marriage as 2 December 1996.  Unless this was a typographical error, there is some question as to whether or not B___ was an eligible beneficiary at the time the FSM enrolled in the RCSBP.
2.  The Board believes the “card” from AR-PERSCOM that the FSM filled out may have been a routine, periodic inquiry as to whether his beneficiary for unpaid retired pay (not SBP beneficiary) had changed.

3.  The Board has considered the Tennessee Army National Guard’s arguments that the FSM was not properly counseled as to how inexpensive coverage for his daughter would have been and how to change his beneficiary upon a change of dependency (such as divorce).

4.  The Board dismisses the latter argument as having no merit.  Changes in SBP options are not authorized except in specific instances or authorized by law. 
A change from spouse only to children only or to spouse and children coverage is not one of those specific instances and is not authorized by law.  The DD Form 1883 clearly states that the decision made with respect to the SBP is a permanent, irrevocable decision and the decision and its effect should be considered very carefully.

5.  The Tennessee Army National Guard’s former argument has merit.  The added cost of electing spouse and children SBP coverage instead of spouse only coverage would probably have been only a few dollars more at most.  B___ was a stepmother to M___.  It is reasonable to presume that had the FSM been properly briefed he would have elected spouse and children coverage to protect his minor child.

6.  Without having sufficient documentation to make a determination, the Board cannot and will not consider whether B___ was or is an eligible SBP beneficiary. However, it appears appropriate to correct the FSM’s records to show he elected spouse and children coverage.  The applicant could then submit a claim for the annuity in the name of M___ and DFAS will make the decision as to who is the legal beneficiary.  

7.  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 on 11 September 1996 the FSM elected to participate in the RCSBP for spouse and children coverage, full base amount, option C.

2.  That the applicant be provided the opportunity to submit a claim for the SBP on behalf of her minor sister M___ and that DFAS make a fair judgment as to who, B___ or M___, is the legal SBP beneficiary based upon the available evidence.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__inw___  __mmd___  __jtm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001066198	
SUFFIX		
RECON		
DATE BOARDED	20020416	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.