RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  
 	DOCKET NUMBER:  AR20080002070 


	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, as the widow of the deceased former service member (FSM), requests, in effect, that their marriage be recognized and that she be provided a spouse annuity under the Survivor Benefit Plan (SBP). 

2.  The applicant states, in effect, that she was married to the FSM since 2000 and that a lack of not reporting her marriage is not a good reason not to honor her SBP.

3.  The applicant provides a copy of a letter from the Chief, Transition and Separation Branch, Army Human Resources Command (AHRC), dated 20 November 2007, and a copy of the FSM's Death Certificate, in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show that he enlisted in the Massachusetts Army National Guard (MAARNG) on 12 December 1971.  He was trained as a Lineman, in military occupational specialty (MOS), 36C.  His date of birth is 8 June 1953.  He was promoted to staff sergeant (SSG/E-6) effective 7 December 1981.  He was reduced from SSG/E-6 to sergeant (SGT/E-5) effective 22 May 1991 with a date of rank of 24 January 1981.  

2.  On 1 February 1996, the State Adjutant General notified the FSM that he had completed the required years of service to be eligible for retired pay on application at age 60 (20-Year Letter).  

3.  On 11 February 1996, the FSM completed a DD Form 1883 (SBP Election Certificate) and indicated that he was not married and had no dependent children.  In item 9c of his DD Form 1883, he elected Option A (Defer).  He also indicated that this was the only election he had submitted under the new SBP.  On that same day, he completed a DARP Form (Reserve Component Supplemental Survivor Benefit Plan Election Certificate [RC-SSBP], in which he elected to decline coverage under the RC-SSBP.  

4.  The applicant and the FSM were married on 16 June 2000.

5.  The FSM's Statement of Retirement Points, dated 20 February 2001, shows that the FSM had completed 20 years, 8 months, and 8 days of qualifying service for retirement purposes.
6.  The FSM served until he was honorably discharged from the MAARNG on 1 October 1996, in the rank of SGT.  The FSM was transferred to the USAR Control Group (Retired Reserve). 

7.  The FSM died on 29 August 2007.

8.  On 20 November 2007, the Chief, Transition and Separation Branch, AHRC-St. Louis, responded to the applicant's inquiry concerning her eligibility for a survivor benefit annuity under Public Law 95-397.  AHRC records indicate that she was married to the FSM on 16 June 2000.  Within the one year time frame after she was married, the FSM should have notified their office of their marriage.  The FSM had completed an SBP election and elected Option A (Defer) until he applied for retired pay at age sixty.  The election was signed and dated 11 February 1996.  AHRC informed the applicant that she may apply to this Board for relief.  AHRC concluded that any benefits to which she could be entitled as a result of her deceased husband's military service would come under the jurisdiction of the Veteran's Administration and the Social Security Administration.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Elections are made by category, not by name, and are irrevocable except as provided for by law.

10.  Public Law 95-397, the Reserve Component Survivor Benefit Plan (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 does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  Once a member elects either Options B or C, in any category of coverage, that election is irrevocable.  

11.  Title 10, United States 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 one year after the date on which that person marries or acquires that dependent child.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the FSM completed an SBP Election Certificate, on 11 February 1996, 10 days after receiving his 20 Year Letter.  He indicated at that time that he was not married, had no dependents, elected "none" for coverage, and deferred his option.

2.  The evidence of record shows that the FSM completed 20 years, 8 months, and 8 days of qualifying service for retired pay benefits; was honorably discharged from the MAARNG; and was transferred to the Retired Reserve.  

3.  The FSM died on 29 August 2007, at the age of 54.  He would not have reached the age of 60 until 2013 when he would have exercised his SBP options, in the absence of his marriage.

4.  The applicant inquired to AHRC concerning her survivor benefit annuity and was informed that their records indicated that she was married to the FSM on 16 June 2000.  Within the one year time frame after they were married, the FSM should have notified their office of his marriage.  Applicant's marriage opened a one-year window within which the FSM could have applied for RCSBP.

5.  There is no evidence, and the applicant has provided none, to show that the FSM elected to enroll his spouse in RCSBP.  Without affirmative proof that the FSM elected RCSBP coverage for his spouse, there is no legal basis to grant the applicant relief.  Unfortunately, she is not entitled to be granted an annuity under the SBP survivor 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


ABCMR Record of Proceedings (cont)                                         AR20080002070



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508