IN THE CASE OF:
BOARD DATE: 6 November 2008
DOCKET NUMBER: AR20080011300
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (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 elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage.
2. The applicant states that she was told she might be eligible for the SBP if she paid the back due premiums. She believes the FSM thought that only his previous wife would be eligible for the SBP.
3. The applicant provides the FSM's death certificate; their certificate of marriage registration; and the FSM's retirement orders and certificate of retirement, in support of her application.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 29 July 1934. After having had prior service in the U. S. Air Force Reserve, he accepted a commission in the U. S. Army Reserve, Dental Corps, on 17 October 1979.
2. The FSM's notification of eligibility for retired pay is not available. He completed 20 qualifying years of service for a non-regular retirement around October 1995. Records at the Defense Finance and Accounting Service (DFAS) show he did not elect to participate in the Reserve Component SBP (RCSBP).
3. The FSM's DA Form 2 (Personnel Qualification Record), dated 14 May 1998, shows his marital status as divorced.
4. The FSM was transferred to the Retired Reserve on 1 August 1998 and on that date he was placed on the retired list in the rank of Colonel, O-6.
5. Records at DFAS show he did not elect to participate in the standard SBP at the time he was placed on the retired list.
6. The FSM and the applicant married on 8 May 1999.
7. The FSM died on 22 February 2008.
8. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
9. All issues of Army Echoes (the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army), to include Issues 1 and 2, 1999 (i.e., the first and second trimesters of calendar year 1999), contain a reminder: "Remember: You (emphasis in the original) are responsible to update your retired pay file at DFAS-CL (address below) within one year of the event if you marry, remarry, are widowed or divorce and need to make or update a Survivor Benefit Plan (SBP) election."
10. Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. Extensive publicity of this Open Season was given in Army Echoes. Army Echoes informed retirees that any category could be enrolled for the first time and that the six options available included spouse coverage and former spouse coverage.
11. Title 10, U. S. 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 of record shows that the FSM elected not to participate in the SBP when he was placed on the retired list on 1 August 1998. It appears he was not married at that time.
2. The FSM married the applicant in May 1999.
3. By law, the FSM could have enrolled in the SBP for spouse coverage within one year of his marriage.
4. In addition, the FSM could have enrolled in the SBP during the October 2005 through September 2006 Open Season.
5. The applicant stated that she believed the FSM thought that only his previous wife would be eligible for the SBP. However, the Army Echoes issued at the time he married the applicant reminded retirees that if they remarried and needed to make an SBP election they were responsible for contacting DFAS, clearly indicating that an SBP election could be made upon remarriage and clearly implying that the new wife could be covered. Plus, the FSM could have had any questions concerning the SBP clarified by calling DFAS.
6. The Army Echoes issued at the time of the October 2005 Open Season clearly informed retirees that any category could be enrolled for the first time. Spouse coverage and former spouse coverage were two of the six options available, clearly indicating that a new wife could be covered. Again, the FSM could have had any questions concerning the SBP clarified by calling DFAS.
7. Regrettably, there is insufficient evidence that would warrant granting the relief requested.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____XX____ ____XX____ ___XX_____ 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.
_______XXX_______________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080011300
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ABCMR Record of Proceedings (cont) AR20080011300
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