IN THE CASE OF: BOARD DATE: 16 September 2010 DOCKET NUMBER: AR20100010247 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the records of her deceased husband, a retired former service member (FSM), be corrected to show he made a voluntary election for spouse coverage under the Survivor Benefit Plan (SBP) within 1 year of their marriage. 2. The applicant states, in effect, that it was the FSM's intent to elect her as his SBP beneficiary after their marriage, but apparently he was confused about the process because of the brain tumor from which he suffered and later died. 3. The applicant provides the FSM's death certificate, their marriage license, and a direct deposit change. CONSIDERATION OF EVIDENCE: 1. The FSM was born on 13 December 1953. His military records show he enlisted in the Regular Army on 18 December 1972. He was released from active duty on 5 December 1975 and served in the U.S. Army Reserve until he again enlisted in the Regular Army on 23 March 1977. 2. On 1 February 1994, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel). On this form he indicated that he was not married, that he had dependent children and that they were not incapable of self support because of a mental or physical incapacity, and that he elected to participate in the SBP for dependent children-only coverage at the full base amount. 3. On 30 April 1994, the FSM was retired and placed on the Retired List the following day in the rank of sergeant first class/pay grade E-7. 4. On 14 January 2006, the applicant and the FSM were married in the State of Texas. 5. A telephone conversation between a member of the Board staff and a staff member at the Defense Finance and Accounting Service revealed the retiree's SBP election status to be "no beneficiary" since at least 1 July 2002. 6. The FSM died on 22 January 2010. 7. Public Law 92-425, the SBP, enacted on 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. Elections are made by category, not by name. Changes in SBP options are not authorized except in specific instances or authorized by law. 8. Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and 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 1 year after the date on which that person marries or acquires that dependent child. 9. The Defense Finance and Accounting Service interprets the first part of Title 10, U.S. Code, section 1448(a)(5), to mean, "who is not married OR has no dependent child." DISCUSSION AND CONCLUSIONS: 1. The FSM was not married when he elected to participate in the SBP for dependent children-only coverage in February 1994. He married the applicant in January 2006. 2. The applicant contends the FSM intended to elect her as his SBP beneficiary after their marriage, but apparently he was confused about the process because of the brain tumor from which he suffered. By law, the FSM was required to enroll the applicant for spouse SBP coverage within 1 year of their marriage if it was his intent to do so. However, there is no independent evidence showing he ever intended to submit or attempted to submit such an enrollment request. There also is no evidence that he lacked the capacity to understand the enrollment process in the year after their marriage. 3. Regrettably, in view of the foregoing, there is no basis for granting the applicant's request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________X_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20100010247 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100010247 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1