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