BOARD DATE: 20 July 2010
DOCKET NUMBER: AR20100007563
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 that she be entitled to an annuity under the Survivor Benefit Plan (SBP).
2. The applicant states that she and the FSM were married in March 2005 and during the process of changing records, he informed her that he was not setting aside an allotment for her because he did not do it for his first wife and he was not going to do it for her. She goes on to state that she had no choice in the matter as he controlled all of the finances. She further states that he said his retirement was his and he wanted it all. She continues by stating that she had major concerns about it because of the age difference of 24 years and his health. He had his fifth heart attack in October 2006 and his health went down-hill from there.
3. The applicant provides a copy of her marriage license, the FSM's death certificate, and the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The FSM was commissioned as a second lieutenant on 3 October 1955 and entered active duty on 14 October 1955. He served as a Dental Corps officer until he was retired in the rank of colonel on 31 October 1980. He was transferred to the Retired List effective 1 November 1980.
2. The FSM's military records contain a properly-constituted DA Form 4240 (Data for Payment of Retired Army Personnel). Part IV (Survivor Benefit Plan Election) of this document clearly shows the FSM declined SBP coverage on 2 October 1980, just 3+ weeks before his retirement on 1 November 1980. This document also shows the FSM was married to his former spouse at the time of his retirement.
3. The FSM married the applicant on 24 March 2005 and he died on 27 December 2007.
4. The applicant provided no evidence that the FSM was paying SBP premiums prior to his death on 27 December 2007 or that he made a proper election during an SBP open season after their marriage making her the recipient of his SBP annuity upon his death.
5. 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. It declared a 12-month open season for those members who retired prior to enactment of the law.
6. Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.
7. SBP elections are generally permanent and irrevocable. SBP elections are made by category, so the choice made by Soldiers for their eligible beneficiaries at the time of their retirement is critical. For example, a Soldier married at retirement, but who declined SBP coverage and later was widowed or divorced and then remarried, may not enroll his or her new spouse, except during an open season.
DISCUSSION AND CONCLUSIONS:
1. The applicant, the widow of a deceased FSM, contends that she should be entitled to an annuity under the SBP.
2. The evidence of record shows the FSM declined SBP coverage for his spouse on 2 October 1980, 3+ weeks prior to his retirement. The fact that the FSM divorced and subsequently remarried on 24 March 2005 does not change his election, as there is no evidence that he made application for enrollment in the SBP during the 2005/2006 SBP open season that occurred between the time of the marriage of the FSM to the applicant and the FSM's death. Moreover, per the applicant's own statement, the FSM did not want to set aside money from his retirement to benefit her. He wanted it for himself.
3. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise appear that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
4. Regrettably, in view of the foregoing, there appears to be 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) AR20100007563
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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