IN THE CASE OF:
BOARD DATE: 30 March 2010
DOCKET NUMBER: AR20090015837
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 correction of the records of her deceased spouse, a former service member (FSM), to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage.
2. The applicant states that when her husband initiated his SBP in August 1999, he was single and listed his brother as the person to receive his SBP annuity. The applicant also states that she and the FSM were married in March 2006; however, her husband did not update his records concerning his marital status or SBP election. The applicant further states that the FSM's brother (i.e., the FSM's current SBP beneficiary) told her that she was entitled to the SBP annuity and that he wanted to transfer it over to her. The applicant states after learning that he was responsible for a credit card debt that he co-signed with the FSM, he changed his mind and decided to keep the SBP annuity.
3. The applicant provides a copy of a State of Massachusetts, Certification of Vital Record, Certificate of Death, Registered Number 279, issued on 16 July 2009; a State of Massachusetts, City of Northampton, Marriage Certificate, dated
25 March 2006; a Department of the Treasury Internal Revenue Service Form
W-4P (Withholding Certificate for Pension or Annuity Payments), dated 23 July 2009; a DD Form 2656-7 (Verification for Survivor Annuity), dated 23 July 2009; a Department of the Treasury Financial Management Service Form 2231 (Direct Deposit), dated 23 July 2009; and three letters of support from a family member and friends.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 28 July 1941. His military service records show that he enlisted in the U.S. Army Reserve (USAR) on 30 December 1959. The FSM's military service records show that he attained the grade of rank of master sergeant (MSG)/pay grade E-8.
2. On 21 July 1981, the FSM was transferred to the USAR Control Group (Retired Reserve) after completing 21 years, 6 months, and 22 days service for pay. Apparently, he did not enroll in the Reserve Component SBP during this period.
3. On 2 August 1999, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel) and indicated that he elected to participate in the SBP for insurable interest coverage, full base amount. The FSM elected his brother as the beneficiary based on full gross pay without supplemental SBP.
4. On 28 July 2001, the FSM turned 60 and was eligible for retired pay.
5. On 25 March 2006, the FSM and the applicant married.
6. On 10 July 2009, the applicant died.
7. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. A person who is not married and does not have a dependent child upon becoming eligible to participate in the SBP may elect to provide an annuity to a natural person with an insurable interest in the member.
8. Public Law 103-337, enacted 5 October 1994, allowed SBP insurable interest participants whose beneficiary is not their former spouse to voluntarily terminate their participation in the SBP.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that the FSM was not married at the time he completed his DD Form 2656. The document indicates that the FSM enrolled in the SBP for a person with an insurable interest (i.e., his brother) and elected an annuity based on the full amount of his retired pay.
2. The evidence of record indicates that the FSM never notified Defense Finance and Accounting Service (DFAS) officials of his marriage to the applicant in 2006 or within 1 year of their marriage, nor did he request to change the beneficiary for his SBP at any time subsequent to his initial SBP election and prior to his death.
3. The evidence of record fails to show that the FSM took the necessary action to change his SBP election from insurable interest (brother) to spouse coverage. Moreover, there is insufficient documentary evidence showing that the individual holding the current interest in the FSM's SBP annuity is willing to relinquish entitlement to his interest in the FSM's SBP annuity. Consequently, the applicant provides insufficient documentary evidence in support of her claim at this time.
4. The applicant is advised that a signed and notarized letter from the FSM's brother, specifically stating that he fully and completely relinquishes entitlement to his interest in the FSM's SBP annuity with repayment of any annuity paid to him, is required and must be provided in order for this Board to reconsider the applicant's request concerning any change in the FSM's SBP. However, any such reconsideration does not guarantee the Board will change the SBP beneficiary.
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) AR20090015837
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ABCMR Record of Proceedings (cont) AR20090015837
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