RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 16 November 2004
DOCKET NUMBER: AR2004105727
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 L. Amos | |Analyst |
The following members, a quorum, were present:
| |Mr. Melvin H. Meyer | |Chairperson |
| |Ms. Eloise C. Prendergast | |Member |
| |Mr. Robert Rogers | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that the records of her deceased
spouse, a former service member (FSM), be corrected to show he enrolled in
the Survivor Benefit Plan (SBP) in a timely manner.
2. The applicant states that, on 22 March 2001, the FSM faxed a letter to
the Defense Finance and Accounting Service (DFAS), along with their
marriage certificate, requesting enrollment in the SBP. The letter had
been mailed earlier but DFAS said they had not received it. The FSM was
suffering from esophageal cancer and made ever effort to ensure his
business matters were in order. That included making sure she was enrolled
in the SBP. DFAS later told her that she could not be paid the annuity
because of a debt to the account in the amount of about $1,100. She is
willing to pay any arrears if necessary.
3. The applicant provides their marriage certificate; the FSM's death
certificate; a letter dated 4 March 2001; and her SBP annuity claim packet.
CONSIDERATION OF EVIDENCE:
1. The FSM retired from active duty on 30 November 1993. He was not
married at the time and declined to enroll in the SBP.
2. The FSM and the applicant married on 23 March 2000.
3. The applicant provided a letter, dated 4 March 2001, from the FSM to
DFAS requesting enrollment in the SBP.
4. The FSM died on 13 March 2002.
5. 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. It
required a 2-year waiting period for new spouse eligibility following post-
retirement remarriage. Public Law 94-496, enacted 14 October 1976, reduced
this waiting period to 1 year following post-retirement remarriage.
6. 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.
DISCUSSION AND CONCLUSIONS:
1. The FSM and the applicant married on 23 March 2000.
2. The applicant provided a letter dated 4 March 2001 showing the FSM
attempted to enroll in the SBP for spouse coverage. It appears neither
this letter, nor a fax of the letter sent to DFAS on 22 March 2001, were
ever received by DFAS in a timely manner. Nevertheless, the letter is
accepted as sufficient evidence to show the FSM made a good faith effort to
comply with the law by requesting enrollment in the SBP within one year of
his post-retirement marriage.
BOARD VOTE:
__mhm___ __ecp___ __rr____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief. As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by showing his 4 March 2001 letter requesting enrollment in the
SBP, for spouse coverage, full base amount, was received and processed by
the appropriate office in a timely manner.
2. That the applicant be advised the Defense Finance and Accounting
Service will be instructed to collect any SBP costs due.
3. That the applicant be paid an annuity based upon the FSM’s election to
participate in the SBP retroactive to 13 March 2002, the date of his death.
___Melvin H. Meyer____
CHAIRPERSON
INDEX
|CASE ID |AR2004105727 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20041116 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |GRANT |
|REVIEW AUTHORITY |Mr. Schneider |
|ISSUES 1. |137.02 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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