APPLICANT REQUESTS: In effect, waiver of the 2 year waiting period following enrollment in the Survivors Benefit Plan (SBP) for eligibility for survivor benefits.
APPLICANT STATES: In effect, that her husband the former service member (FSM) enrolled in the SBP during the open enrollment period from 1 April 1992 through 31 March 1993.
EVIDENCE OF RECORD: The FSMs military records show:
FSM was born on 9 May 1922. He enlisted in the Regular Army on 24 July 1946 and through subsequent reenlistments remained on active duty until his retirement on 31 January 1965. The FSM served more than 22 years of creditable active service. The highest grade he achieved was pay grade E-7. The FSM was married.
During the open enrollment season (1 April 1992 through
31 March 1993) the FSM elected SBP participation for spouse, effective date of coverage was 1 April 1993, which was the last month of the 1 year open season. The FSM died on
2 February 1995, at the age of 72. The FSM did not survive 2 years from the date of election; therefore no annuity was payable to his surviving spouse, who received a cost refund of all SBP premiums paid by the FSM.
Public Law 92-425, 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. The election made by the member was irrevocable. Military members who were retired before 21 September 1972 had until 20 September
1973 (subsequently changed to 20 March 1974) to apply for coverage under the SBP.
Public Law 97-35, effective 13 August 1981, provided for an open enrollment season (1 October 1981 through 30 September 1982), which permitted members, eligible for retired pay, to elect to participate in the SBP during an open enrollment season. However, if the service member died within 2 years following an election made during this open season, the election became void. In that case, the SBP costs deducted from the member's retired pay were to be refunded to the beneficiary named in the SBP election. Eligible retirees were furnished forms and instructions in order to enroll if they desired. A second RC-SBP open enrollment season was authorized during the period 1 April 1992 to 31 March 1993. Elections were effective the first day of the month following receipt of the application.
In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from SBP Board which advised, in effect, that the applicants request be denied.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence which would satisfy the aforementioned requirement.
2. The evidence of record shows that the FSM retired on
31 January 1965 and elected SBP coverage for spouse during the second open enrollment period in 1992, (1 April 1992 through 31 March 1993). Unfortunately, he died on
2 February 1995, less than 2 years after submission. Therefore by operation of law, his election of the SBP on
1 April 1993, became void.
3. In view of the foregoing, there exists no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
ARMY | BCMR | CY2013 | 20130003085
A letter from DFAS shows $80.69 was paid in premiums each month in 2000. b. DFAS states the additional money her husband was paying was due to the buy-in premiums or "Open Season" cost. However, only the spouse SBP premiums are refundable through Public Law 92-425. c. Public Law 105-261 states all SBP premiums will be terminated effective 1 October 2008 for all members who are at least 70 years old and have paid SBP premiums for 360 or more months.
ARMY | BCMR | CY2009 | 20090009776
IN THE CASE OF: BOARD DATE: 29 December 2009 DOCKET NUMBER: AR20090009776 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. DFAS records show the FSM elected SBP during an Open Season in 1993. She provided a Retired Pay SBP Cost Refunds document, prepared on 3 March 2008, which appears to have an incorrect effective date of 1 October 2005 instead of 1 December 2004.
ARMY | BCMR | CY2003 | 2003091601C070212
Counsel requests, in effect, waiver of the law that requires a retiree to survive two years from the date of enrollment before a beneficiary is eligible for an SBP annuity. The evidence of record shows that the FSM and his spouse were married on 2 July 1955, seven months after the FSM entered active duty. The evidence of record further shows that the applicant began the process to enroll in the SBP with the intent of enrolling with an effective date of 1 December 1992; however, his formal...
ARMY | BCMR | CY2010 | 20100007842
She states the FSM told her he could not elect spouse coverage under the SBP because they were divorced when he retired from the Army. The FSM did not elect to provide SBP spouse coverage within 1 year of their remarriage. The letter from DFAS, dated 29 January 2010, stated that because the courts have conclusively determined that the applicant was the legal spouse of the FSM at the time of his death, the FSM's open enrollment election of SBP coverage for E___ l as his spouse must be...
ARMY | BCMR | CY2006 | 20060015824C071029
Edward E. Montgomery | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. The evidence of record shows that the FSM enrolled in the RSFPP in conjunction with his retirement on 30 June 1967, and that premiums continued to be collected from his retired pay through the date of his death in 1995, more than 18 years after his first spouse died in 1977. As a result, the Board recommends that all Department of the Army records of the...
ARMY | DRB | CY2005 | 20050006132
Rowland C. Heflin | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. The FSM retired on 1 October 1979. There is no evidence of record to show it was the FSM's intent to provide the SBP to the applicant.
ARMY | DRB | CY2005 | 20050004916
Dennis J. Phillips | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. Public Law 92-425, 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. The applicant provides no evidence to show her and the FSM were improperly briefed when he enrolled in the SBP during the 1981 through 1982 Open...
ARMY | BCMR | CY2007 | 20070006453
The applicant states, in effect, that upon retirement from the Utah Army National Guard (UTARNG), he was unmarried and thus elected the children only coverage of the Reserve Component SBP. This application was dated 2 March 2007 by the applicant and received by the Army Board for Correction of Military Records (ABCMR) on 27 April 2007. On 20 December 2005, HRC emailed DFAS (responding to HRC's email dated 14 November 2005) and asked "If the FSM elects to cover spouse during the open...
ARMY | BCMR | CY1995 | 9508767C070209
The applicant request, in effect, correction of the military records of her late husband, the former service member (FSM), by honoring the open enrollment election for Supplemental Survivor Benefit Plan (SSBP) coverage and waive the 2 year survivorship requirement. He died on 30 March 1995, 2 days before the SSBP coverage became effective. RECOMMENDATION: That all of the Department of the Army records related to this case be corrected by waiving the 2 days needed to meet the 2-year...
ARMY | BCMR | CY2001 | 2001056993C070420
The applicant requests correction of military records as stated in the application to the Board and as restated herein. He applied for retired pay at age 58 and submitted it on 19 October 2000, electing to participate in the SBP. 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.