IN THE CASE OF: BOARD DATE: 25 June 2013 DOCKET NUMBER: AR20120021457 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, the widow of a deceased former service member (FSM), requests correction of the FSM's record to show he elected Survivor Benefit Plan (SBP) coverage and designated her as the annuitant of the SBP. 2. The applicant states: * the FSM was divorced when he retired * the FSM married the applicant after he retired, but never informed the Defense Accounting and Finance Service (DFAS) to change his SBP election * the FSM's SBP election is incorrect because they were married from 15 May 1999 to the date of death * the corrected SBP election should read "spouse coverage based on full retirement pay," not "no beneficiary" * she understands she will have to pay for coverage from the date of their first anniversary until his death 3. The applicant provides: * the FSM's Divorce Decree, dated 20 December 1994 * the FSM's DD Form 2656 (Data for Payment of Retired Personnel), dated 27 December 1994 * their marriage certificate, dated 15 May 1999 * the FSM's Certificate of Death CONSIDERATION OF EVIDENCE: 1. The FSM was born on 12 March 1935. He was commissioned as an officer in the U.S. Army Reserve on 31 July 1959. 2. The FSM's 20-year letter, dated 6 October 1981, notified him he had completed the required years of service and he would be eligible for retired pay upon application at age 60. 3. The FSM's record contains and the applicant submitted a copy of the FSM's Divorce Decree that shows the FSM and his first wife were divorced on 20 December 1994. The Decree is silent on the issue of SBP. 4. The FSM's record contains and the applicant submitted a DD Form 2656 that was signed by the FSM and witnessed on 27 December 1994. The form shows in: * Item 14 (Marital Status) an "X" in the "Single" block * Item 28g (Beneficiary Category (ies)) a "?" in "g. I elect not to participate in the SBP (I do not have eligible dependents under the plan)" 5. The FSM retired from the Army on 12 March 1995. 6. On 15 May 1999, the FSM married the applicant. 7. On 20 October 2012, the FSM died at the age of 77. The Death Certificate shows the applicant was married to the FSM at the time. 8. Public Law 95-397, the Reserve Components SBP (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; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity. 9. 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. However, if a person has eligible dependents in either category and chooses to decline coverage he or she is precluded from adding subsequent dependents except during Open Season enrollment periods. 10. DFAS 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…." 11. Public Law 108-375, enacted on 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. Extensive publicity was given in Army Echoes. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that she should be designated as the annuitant of her deceased spouse's SBP was carefully considered. 2. The evidence of record shows that prior to his retirement, the FSM and his first wife were divorced. The FSM made an election declining SBP. The FSM married the applicant on 15 May 1999 and he passed away on 20 October 2012. 3. There are no documents in the available record, or provided by the applicant, that shows the FSM ever made an election to participate in the SBP within 1 year of his remarriage or during an Open Season enrollment period. There is also no evidence the FSM ever paid any SBP premiums. The Army provided extensive publicity and opportunities to enroll in the SBP during each Open Season. 4. In the absence of evidence that the FSM ever elected to participate in the SBP, there is no basis to now designate the applicant as the recipient of said benefits. 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) AR20120021457 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120021457 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1