Search Decisions

Decision Text

ARMY | BCMR | CY2009 | 20090005149
Original file (20090005149.txt) Auto-classification: Denied

		IN THE CASE OF:	

		BOARD DATE:	11 August 2009    

		DOCKET NUMBER:  AR20090005149 


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 the records of her deceased husband, a former service member (FSM), be corrected to reflect her as the beneficiary of his Survivor Benefit Plan (SBP) coverage.

2.  The applicant states that she married the FSM on 20 October 2003 and resided with him until his death on 27 December 2008 and that she was unemployed prior to his death.  She adds that she only found out after his death that he never discussed the SBP with her or elected SBP coverage for her.

3.  The applicant provides a copy of the FSM’s DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 December 1995; a copy of the FSM’s Retiree Account Statement, dated 4 September 2008; a copy of her marriage certificate, dated 20 October 2003; a copy of the FSM’s Alabama Certificate of Death, dated 27 December 2008; and a copy of the FSM’s Decree of Divorce, dated 15 November 1985, in support of her application.  

CONSIDERATION OF EVIDENCE:

1.  The FSM’s record shows that having had prior service, he enlisted in the Regular Army (RA) on 27 November 1981.  He held military occupational specialties (MOS) 27E (Land Combat Electronic Missile Repairer) and 95B (Military Police) and executed several extensions and/or reenlistments in the RA.


2.  The FSM’s record further shows he divorced his first spouse, Linda, on 14 November 1985.  His divorce decree is silent on the issue of the SBP.

3.  On 23 October 1995, and in preparation for his upcoming retirement, the FSM 
completed a DD Form 2656 (Data For Payment of Retired Personnel).  He indicated that he was single but had dependent children and listed his son, Jason, born on 28 April 1982.  He further elected "children only" coverage, full amount, under the SBP.  

4.  The FSM’s record further shows he was honorably released from active duty on 31 December 1995 and placed on the Retired List in his retired rank/grade of staff sergeant (SSG)/E-6 on 1 January 1996.  He was credited with 20 years of active Federal service.

5.  On 20 October 2003, the FSM married his second spouse, the applicant.  However, there is no indication in the FSM’s records that he notified the Defense Finance and Accounting Service (DFAS) of the change in his marital status or that he elected Spouse SBP coverage within one year of his marriage. 

6.  On 27 December 2008, the FSM died.  His death certificate shows he was married to the applicant at the time of death.

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.

8.  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.

9.  The DFAS interprets the first part of Title 10, U.S. Code, section 1448(a)(5) to mean, “…who is not married OR has no dependent child….”

10.  The National Defense Authorization Act (NDAA) for Fiscal Year 2005 established an Open Season to be conducted 1 October 2005 to 30 September 2006.  The retiree must pay monthly premiums starting on the date of enrollment 

and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the records of her deceased husband, a FSM, should be corrected to reflect her as the beneficiary of his SBP coverage.

2.  The evidence of record shows that prior to his retirement, the FSM made an SBP election for children only coverage.  He did not have a spouse at the time. He and his spouse, the applicant, were married on 20 October 2003.  The law permitted him to add his spouse within 1 year of their marriage.  He did not do so.  

3.  Furthermore, even if he missed the one-year mark to enroll his spouse in the SBP, he had a second opportunity to do so during an Open Season.  The next available Open Season during which the FSM could have enrolled his spouse as beneficiary was 1 October 2005 - 30 September 2006.  Again, he did not do so.  Therefore, there is no error or injustice in his record.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant her the requested relief.

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)                                         AR20090005149



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005149



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2012 | 20120021457

    Original file (20120021457.txt) Auto-classification: Denied

    The applicant, the widow of a deceased former service member (FSM), requests correction of the FSM's record to show he elected Survivor Benefit Plan (SBP) coverage and designated her as the annuitant of the SBP. On 15 May 1999, the FSM married the applicant. There are no documents in the available record, or provided by the applicant, that shows the FSM ever made an election to participate in the SBP within 1 year of his remarriage or during an Open Season enrollment period.

  • ARMY | BCMR | CY2010 | 20100007842

    Original file (20100007842.txt) Auto-classification: Denied

    She states the FSM told her he could not elect spouse coverage under the SBP because they were divorced when he retired from the Army. The FSM did not elect to provide SBP spouse coverage within 1 year of their remarriage. The letter from DFAS, dated 29 January 2010, stated that because the courts have conclusively determined that the applicant was the legal spouse of the FSM at the time of his death, the FSM's open enrollment election of SBP coverage for E___ l as his spouse must be...

  • ARMY | BCMR | CY2008 | 20080011300

    Original file (20080011300.txt) Auto-classification: Denied

    The FSM and the applicant married on 8 May 1999. The FSM married the applicant in May 1999. 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.

  • ARMY | BCMR | CY2009 | 20090001369

    Original file (20090001369.txt) Auto-classification: Denied

    The applicant requests reconsideration of her previous request that the records of her husband, the former service member (FSM) be corrected to show that he elected to change his Survivor Benefit Plan (SBP) coverage from "Natural person with insurable interest-mother" to "Spouse only" coverage upon marriage. The applicant appealed to the ABCMR in an application dated 1 August 2007 requesting that the FSM's records be corrected to show that he elected to change his SBP coverage from "Natural...

  • ARMY | BCMR | CY2008 | 20080013050

    Original file (20080013050.txt) Auto-classification: Denied

    The evidence of record shows that at the time of his retirement, the FSM elected not to participate in the SBP for spouse coverage. Neither the applicant nor the FSM made a former spouse election within one year of the divorce as required by law. The FSM’s death certificate indicates that the FSM was remarried after he and the applicant divorced; therefore, SBP benefits shifted to the beneficiary category in effect at the FSM’s time of death, his widow, “D,” if they had been married for at...

  • ARMY | BCMR | CY2010 | 20100020185

    Original file (20100020185.txt) Auto-classification: Denied

    The applicant, the widow of a deceased former service member (FSM), requests correction of the FSM's records to show he elected spouse Survivor Benefit Plan (SBP) coverage and payment of the SBP annuity based on his death. c. in Section XI (SBP Spouse Concurrence) (Required when member is married and elects children only coverage or does not elect full spouse coverage, or declines coverage), item 30 (I hereby concur with the SBP election made by my spouse. This form shows the FSM indicated...

  • ARMY | BCMR | CY2009 | 20090008620

    Original file (20090008620.txt) Auto-classification: Denied

    This letter notified the FSM that he had completed the required years of service and he would be eligible for retired pay upon application at age 60. The FSM's records indicate that he had no eligible dependents at the time he made his election and declined to participate in the RCSBP 3. Although the FSM had two opportunities during which to enroll the applicant in the RCSBP, his record is devoid of any evidence and the applicant has failed to provide any evidence that the FSM attempted to...

  • ARMY | BCMR | CY2014 | 20140008091

    Original file (20140008091.txt) Auto-classification: Denied

    The applicant, the widow of a deceased former service member (FSM), requests correction of her husband's records to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage. The denial letter states: * by law, the FSM had 1 year from the date of marriage (23 April 2005) to elect coverage for his spouse * the FSM never made an election for spouse coverage * the applicant's request for payment must be denied 8. The evidence shows the FSM was...

  • ARMY | BCMR | CY2008 | 20080011056

    Original file (20080011056.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). The applicant requests, in effect, reconsideration of her earlier petition to the Board requesting the records of her deceased husband, a former service member (FSM), be corrected to show that he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage. However, the evidence of record gives no indication that the FSM ever submitted an SBP election form to...

  • ARMY | BCMR | CY2008 | 20080005892

    Original file (20080005892.txt) Auto-classification: Denied

    The applicant states that she and the FSM married on 29 December 2003 and that they made application for retired pay at age 60 on 8 November 2005. 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before...