RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 26 June 2007
DOCKET NUMBER: AR20060012248
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.
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, the former spouse of a deceased former service member (FSM) who remarried after the FSMs death, requests that she be entitled to an annuity under the Survivor Benefit Plan (SBP).
2. The applicant essentially states that she remarried after the FSMs death, and feels as though she should not be punished because of the fact that she remarried. She also states, in effect, that if the fact that she remarried is the reason she does not continue to receive an SBP annuity, that the Army should change their policy, and that she would call that discrimination.
3. The applicant provides a self-authored statement and certified copies of the FSMs death certificate and their marriage record in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged injustice which occurred in July 1995, the month in which she remarried. The application submitted in this case is dated 20 August 2006.
2. The applicant provided a marriage record which shows that she and the FSM were married on 17 October 1975. The applicant, born on 17 December 1950, was 24 years old.
3. The FSM retired from the Army National Guard on 15 March 1986.
4. The applicant also provided a death certificate which shows that the FSM died on 6 July 1994. The applicant was 43 years old at the time of the FSMs death.
5. Although the applicant did not provide a marriage certificate showing that she remarried, the analyst for this record of proceedings contacted the applicant on
2 April 2007, and the applicant stated that she remarried in July 1995. The applicants age would have been 44 years at that time of her remarriage.
6. The applicant essentially stated that she remarried after the FSMs death, and feels as though she should not be punished because of the fact that she remarried. She also stated, in effect, that if the fact that she remarried is the
reason she does not continue to receive an SBP annuity, that the Army should change their policy, and that she would call that discrimination.
7. The available records contain no evidence that the FSM ever elected to participate in the SBP. Further, the record contains no evidence that the applicant received an SBP annuity prior to her remarriage.
8. 10 U.S.C. 1450(b)(2) provides that an SBP annuity to a surviving spouse terminates if that spouse remarries before age 55. 10 U.S.C. 1450 (b)(3) provides that the surviving spouse is entitled to resumption of the SBP annuity if the subsequent marriage is terminated by death, annulment, or divorce. An SBP annuity does not terminate if the surviving spouse remarries after age 55. 10 U.S.C 1450 (b) (1) provides that an SBP annuity terminates the first day of the month in which the annuitant remarries.
9. The applicant was 44 years old at the time of her remarriage and therefore ineligible to receive an SBP annuity by virtue of Federal law. If she was 55 or older at the time of her remarriage, her SBP annuity would not have been affected. If the applicants current marriage terminates by death, annulment, or divorce, she will again become eligible to receive an SBP annuity provided she could provide evidence that the FSM signed up for the SBP. This eligibility would not be affected by a subsequent remarriage.
DISCUSSION AND CONCLUSIONS:
1. The applicant, the former spouse of a deceased FSM who remarried after the FSMs death, contends that she should be entitled to an annuity under the SBP. However, there is no evidence that the FSM ever enrolled in the SBP.
2. Even if the applicant can show the FSM enrolled in the SBP, the statute governing the SBP clearly states that an SBP annuity terminates the first day of the month in which the annuitant remarries if remarriage occurs before age 55. Regrettably, as a result, there is no basis for granting relief to the applicant is this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__JA____ __JP____ __JM ___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that 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.
____James Anderholm______
CHAIRPERSON
INDEX
CASE ID
AR20060012248
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070626
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES 1.
137.0100.0000
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