RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 26 June 2007
DOCKET NUMBER: AR20060012285
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 widow of a deceased former service member (FSM), requests, in effect, that she be entitled to an annuity under the Survivor Benefit Plan (SBP).
2. The applicant essentially states that the FSM only received notice of permanent disability, and that nothing was ever sent to him about SBP enrollment. She also states, in effect, that the FSM had mental difficulties, was unable to handle his own affairs, and did not know that SBP enrollment was available.
3. The applicant provides the following in support of this application:
a. a letter, dated 31 March 2006, from the Transitions and Separations Branch of the United States Army Human Resources Command, St. Louis, Missouri;
b. the FSMs DD Form 214 (Certificate of Release or Discharge From Active Duty);
c. the FSMs death certificate and supplemental report of cause of death;
d. orders removing the FSM from the Temporary Disability Retired List (TDRL), and permanently retiring him on 24 February 2003;
e. a letter, dated 12 July 2006, from a staff psychiatrist from the Department of Veterans Affairs (DVA) Medical Center, Asheville, North Carolina;
f. a Certificate of Marriage for the applicant and the FSM;
g. a divorce judgment between the FSM and his former spouse; and
h. a letter, dated 13 April 2006, from the Social Security Administration regarding the applicants application for Disability Insurance Benefits.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged injustice which occurred on 4 September 2005, the date the FSM died. The application submitted in this case is dated 22 August 2006.
2. The FSM was placed on the TDRL on 19 November 1999. On 24 September 1999, the FSM completed a DD Form 2656, Data for Payment of Retired Personnel, wherein he elected spouse and children coverage under the SBP and showed C_______E________as his spouse.
3. The FSM was removed from the TDRL and permanently retired on
24 February 2003. The FSM and C________ E______ divorced on 19 May 2004. The divorce decree is silent concerning the FSMs disability retired pay or requirement to obtain or maintain SBP coverage.
4 The applicant provided a marriage certificate which shows that she and the FSM were married on 14 April 2005. She also provided the FSMs certificate of death which shows that he died on 4 September 2005, 144 days after they were married.
5. The applicant did not provide any evidence which shows that she mothered a child with the FSM during their marriage.
6. The applicant essentially stated that the FSM had mental difficulties, was unable to handle his own affairs, and did not know that SBP enrollment was available. She also provided a letter, dated 12 July 2006, from a staff psychiatrist from the DVA Medical Center, Asheville, North Carolina. This letter essentially stated that the FSM was under the care of a staff psychiatrist for his mental illness from 15 December 2000 until the time of his death on 4 September 2005. This letter also stated, in effect, that prior to 22 December 2004, the FSM had been considered competent to handle his DVA affairs. The staff psychiatrist continued by essentially stating that it was his professional opinion that the severe stress and the polypharmacy [the use of two or more drugs together, usually to treat a single condition or disease] required to manage the FSMs anxiety and pain between 22 December 2004 and the time of his death resulted in poor decision making, and therefore he lacked the ability to adequately manage his DVA affairs during that timeframe.
7. Title 10, United States Code, Section 1447 defines a surviving spouse and widow for the purposes of SBP eligibility. To qualify for an annuity, the surviving spouse, if not married to the military member at the time he became eligible for retired pay, must either have been married to the military member the year immediately before the members death or be the mother of their dependent child.
8. Public Law 92-425 essentially provides that there is a mandatory 1-year waiting period from the date of marriage until the first month of eligibility for SBP. A servicemember must also apply within the year following a marriage for SBP coverage.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests that she be entitled to an annuity under the SBP.
2. The FSM applied for an SBP annuity upon his placement on the TDRL and named C_____E_____as his beneficiary. It appears that the FSM continued his SBP coverage until his death
3. The FSMs medical condition is not a mitigating factor in this case. Although the applicant was married to the FSM at the time of his death, they were not married for at least one year before the FSM died, and there is no evidence that she mothered a child with the FSM during their marriage. Therefore, according to law and regulation, the applicant is not entitled to a spouse annuity under the SBP. Regrettably, as a result, there is no basis for granting relief to the applicant in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__JA____ __JP ___ __JM ___ 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.
___ James Anderholm________
CHAIRPERSON
INDEX
CASE ID
AR20060012285
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.
137.0000.0000
2.
3.
4.
5.
6.
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