IN THE CASE OF:
BOARD DATE: 18 December 2008
DOCKET NUMBER: AR20080015029
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 that the records of her late husband, a former service member (FSM), be corrected to show that he elected Survivor Benefit Plan (SBP) coverage.
2. The applicant states that neither she nor her husband realized there was a time limit in making an SBP election. Therefore, they were not properly informed about the SBP.
3. The applicant provides details of her husband's illnesses, the pain he experienced as a result of his illnesses, and how she was there for him throughout his ordeal. The applicant adds that she is also disabled due to a spinal injury, but cannot collect her husband's social security widow's pension until she is 50 years old and she is only 48 years old.
4. The applicant provides her certificate of marriage and her husband's death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM's records show that he enlisted in the Regular Army on 5 June 1972 and was honorably released from active duty on 28 June 1974 and placed on the Temporary Disability Retired List (TDRL) the following day.
2. On 1 March 1978, the FSM was permanently retired for physical unfitness.
3. The FSM married the applicant on 18 June 2004 and he died on 23 April 2008.
4. 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. Elections are made by category, not by name. Changes in SBP options are not authorized except in specific instances, or authorized by law.
5. 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.
6. Army Echoes is an Army Bulletin for the Army Retiree published three times a year and mailed to Army retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. These Bulletins consistently contain a reminder to retirees that they are responsible for updating their accounts within one year of marriage, remarriage, divorce or upon the death of a spouse and that they may need to make or update a SBP election. Periodically, these Bulletins contain articles explaining the SBP and the importance of keeping accounts up to date.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence that the FSM elected SBP within 1 year of his marriage to the applicant.
2. The applicant contends that she was not properly counseled concerning SBP. In this regard, while the Army will provide counseling on SBP to individuals upon request, the Army is under no obligation to seek out spouses of military retirees who marry after their retirement to inform them of their spouse's SBP options.
3. In addition, the FSM was reminded at least three times a year to keep his SBP current in his Army Echoes Bulletin. If he was unsure on what his options were, the Army Echoes provided contact information on counselors who would have provided that information and would have assisted him.
4. Regrettably, in view of the foregoing there is no basis for granting the applicant's request.
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
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) AR20080015029
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ABCMR Record of Proceedings (cont) AR20080015029
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