IN THE CASE OF:
BOARD DATE: 1 December 2009
DOCKET NUMBER: AR20090008627
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, the widow of a deceased former service member (FSM), requests, in effect, that she be designated as the annuitant of the FSM's Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that her husband, the FSM, entered the military on 3 June 1966, retired after serving for over 20 years, received his 20-year letter in 2002, and they married on 4 July 2008. She also states that he completed the DD Form 2656-6 on 24 November 2008, naming her as the beneficiary for SBP. She concludes by stating that he would have not completed the form if he did not desire that she be taken care of.
3. The applicant provides a copy of a DA Form 1883 (Survivor Benefit Plan Election Change Certificate), a DA Form 2656-6 (Survivor Benefit Plan Election Change Certificate), a marriage certificate, and two death certificates in support of this application.
CONSIDERATION OF EVIDENCE:
1. The FSMs military service records show he was born on 16 December 1946. He enlisted in the Regular Army on 3 June 1966 and served until 1 July 1976. After a break in service, he enlisted in the reserve components.
2. The FSM's record contains a copy of a DA Form 1883 signed and witnessed on 31 May 2002, which shows in item 9a that he elected full retired pay in order to provide an annuity for M-----a G----d, who was his spouse at the time, and elected Option B.
3. The applicant submitted a copy of an Indiana State Department of Health Certificate of Death that shows that the FSM's first wife died on 7 March 2006.
4. The FSM's records contain a copy of a DD Form 2656-6 dated 25 November 2006 which shows that the FSM suspended his SBP coverage due to the death of his first wife.
5. The FSM retired from the Army on 15 December 2006, after serving honorably for a total of 24 years, 9 months, and 16 days.
6. The applicant submitted a Certified Copy of Marriage License and Certificate of Marriage which shows that on 20 June 2008 she and the FSM were married.
7. The applicant submitted a copy of a DA Form 1883, signed and witnessed on 24 November 2008, which shows in item 8 that the FSM requested a change in coverage based on marriage. It shows in item 9a that the FSM elected reduced retired pay in order to provide an annuity for S----n G----d, the applicant.
8. The FSM died on 21 Janaury 2009.
9. Title 10, U.S. Code, Section 1447 defines a surviving spouse and widow for the purposes of SBP eligibility. To qualify for an annuity, the surviving spouse, if not married to the military member at the time he became eligible for retired pay, must either have been married to the military member the year immediately before the members death or be the mother of their dependent child.
10. Public Law 92-425 provides that there is a mandatory 1-year waiting period from the date of post-retirement marriage until the first month of eligibility for SBP.
DISCUSSION AND CONCLUSIONS:
1 The evidence of record shows that prior to his retirement, the FSM made an SBP election for spousal coverage for his first wife. The FSM suspended his SBP premiums when his first wife passed away. The FSM remarried on 4 July 2008 and passed away on 9 January 2009, less than 1 year from the date of their marriage.
2. Although the applicant was married to the FSM at the time of his death, they were not married for at least one year before the FSM died, and there is no evidence that she mothered a child with the FSM during their marriage. The applicant submitted evidence that shows that the FSM completed the necessary paperwork to reinstate his SBP; however, there is no indication that he forwarded the paperwork to DFAS to enroll his spouse in the SBP. Even had he done so the applicant was not married to the FSM for at least a year and is not a widow for the purposes of SBP. Therefore, according to law and regulation, the applicant is not entitled to a spouse annuity under the SBP. Regrettably, as a result, there is no basis for granting relief to the applicant in this case.
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) AR20090008627
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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