IN THE CASE OF:	

		BOARD DATE:	  23 December 2008

		DOCKET NUMBER:  AR20080015438 


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 military records of her husband, a deceased former service member (FSM), be corrected to show he added a new spouse (the applicant) to his previous Survivor Benefit Plan (SBP) election within one year of their marriage.

2.  The applicant states the FSM did not have the opportunity to elect SBP coverage for her following their marriage.  She further states they were told by Department of Veterans Affairs (VA) staff they had to wait 1 year after marriage to elect SBP coverage for her.

3.  The applicant provides, in support of her application, copies of their marriage certificate, two letters from the Defense Finance and Accounting Service (DFAS), a letter from the FSM to his Congressional representative, the FSM's death certificate, a Retiree Account Statement, additional correspondence between the FSM and his Congressional representative, a letter from the VA, and a power of attorney.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he initially enlisted in the Regular Army on 26 April 1961 and served continuously until his retirement.



2.  On 9 April 1981, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  On this form the FSM indicated that he was not married, that he had dependent children, that they were not incapable of self-support because of a mental or physical incapacity, and that he declined coverage under the SBP.

3.  On 30 April 1981, the FSM was released from active duty and placed on the Retired List on the following day in the grade of staff sergeant (SSG)/pay grade E-6.

4.  On 25 July 2006, the applicant and the FSM were married in Portland, Oregon.

5.  A letter from DFAS, dated 11 March 2008, informed the FSM that his request for spouse coverage under SBP for his newly married spouse could not be implemented because he had not elected coverage within 1 year of their marriage date.

6.  In a letter to his Congressional representative, dated 16 April 2008 and signed by the FSM with an "X" and witnessed by the applicant and a social worker, the FSM described himself as suffering from diabetes, coronary artery disease, and end-stage renal disease.  He further stated he was blind and confined to a wheel chair.  The FSM requested his Congressional representative's assistance in getting the requirement of electing SBP coverage within 1 year of their marriage waived because due to his poor health the applicant would likely be dependent upon survivor benefits through the VA and the Department of the Army for many years.

7.  In a letter to the FSM's Congressional representative, dated 23 June 2008, DFAS explained that the FSM had 1 year from the date of his marriage to elect SBP coverage for the applicant.  However, the marriage certificate was not received until 26 February 2008 [7 months after the expiration of the 1-year filing period].

8.  The FSM died on 12 August 2008.

9.  The FSM's Retiree Account Statement, with an effective date of 7 April 2008, does not show any SBP premiums being deducted from the FSM's retired pay.

10.  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.  Elections are made by category, not by name.
11.  Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married or 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 1 year after the date on which that person marries or acquires that dependent child.  

12.  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 1 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.  The applicant contends that neither she nor the FSM were aware that the FSM was required to make an SBP election within 1 year of their marriage.

2.  Retiree Account Statements are sent by DFAS to retirees each time there is a change in the retiree's retirement pay.  This normally happens at least once a year to reflect the cost of living increase awarded to retirees.  Therefore, the applicant would have been receiving a Retiree Account Statement, along with the DFAS, Military Retired Pay Newsletter, since his retirement.  Each statement showed the current SBP coverage elected by the retiree or the fact that no SBP election is reflected.

3.  Issues of Army Echoes 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 that they may need to make or update an SBP election.  Since the SBP is an Army program and not a VA program, the information contained in Army Echoes should have taken precedence over any information they received from the VA.

4.  Based on the above, the applicant's contention that she and the FSM were unaware of the requirement to enroll her in SBP within 1 year of marriage is not supported by the evidence in this case.  They would have received at least one Retiree Account Statement within one year of their marriage and the FSM would have received numerous issues of Army Echoes since his retirement.

5.  Regrettably, there is insufficient evidence that would warrant granting the relief requested.

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)                                         AR20080015438



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015438



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1