IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100010010 


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 that the records of her deceased husband, a former service member (FSM), be corrected to show that she is eligible, as his spouse, to receive a Survivor Benefit Plan (SBP) annuity upon his death.

2.  The applicant states that she applied for an SBP annuity and was denied because the FSM was murdered 6 days before the anniversary of their first year of marriage, despite the fact that they had lived together for 5 years before their marriage.  She goes on to state that she should not be denied benefits because of something beyond her control.  She also states that she is currently unemployed, and facing financial ruin because of the assumption of both of their liabilities and now she is being told that she is not entitled to the survivor benefits of her late husband.

3.  The applicant provides a letter explaining her application and listing her enclosures.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 23 February 1968 and he enlisted in the Louisiana Army National Guard (LAARNG) on 11 August 1986.  He completed his training and served as a carpentry and masonry specialist.  He deployed to Southwest Asia from 9 February 1991 to 31 August  1991 and was promoted to the pay grade of E-7 on 6 January 1997.

2.  On 21 October 1999, the FSM was divorced from his first wife and his former spouse retained custody of their three children who were born in 1991, 1995 and 1998.

3.  On 8 November 2001, the FSM transferred to a transportation company for duty as a motor transport operator.  He was ordered to active duty in support of Operation Enduring Freedom and deployed to Iraq from 24 April 2003 to 10 March 2004.  He was released from active duty on 23 April 2004 and was returned to his LAARNG unit.

4.  On 8 November 2006, he was issued his Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter).  The notification advised the FSM that qualified Reserve Component members who were married would automatically be enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) under Option C (spouse and children coverage based on full retired pay) unless different coverage was selected within 90 days of receipt of this letter.

5.  On 1 May 2007, the FSM was honorably discharged from the LAARNG and transferred to the United States Army Reserve (USAR) Control Group Retired.  He was 39 years of age.

6.  The FSM married the applicant in Shreveport, Louisiana on 2 August 2008 and on 27 July 2009, he died as a result of multiple gunshot wounds in Shreveport, Louisiana.  He was 41 years of age.

7.  On 20 January 2010, officials at the Human Resources Command in St. Louis, Missouri (HRC-STL) notified the applicant to the effect that Title 10, United States Code, sections 1448 – 1455, state that in order for a surviving spouse to be eligible for receipt of an SBP annuity, the surviving spouse must be married to the deceased Reserve Soldier at least 1 year prior to the member’s death.  The FSM died 6 days before the first anniversary of their marriage; therefore, she was not entitled to receive an SBP annuity.  HRC-STL officials advised the applicant to apply to the Board for relief. 

8.  In the processing of this case, a staff member of the Board contacted officials at the Defense Finance and Accounting Service (DFAS) to determine what election the FSM had made if any.  Officials at DFAS indicated the FSM had a children only election and his records still indicated he was divorced.

9.  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.  Election of beneficiaries is made by category only, not by name.
10.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. 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 age 60.  Once a member elects either options B or C in any category of coverage, that election is irrevocable.  

11.  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.  

12.  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….”

13.  Army Echoes is an Army Bulletin for the Army Retiree published three times a year and mailed to Army retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.  These Bulletins consistently contain a reminder to retirees that the retiree is responsible for updating their accounts within 1 year of marriage, remarriage, are widowed or divorced and need to make or update a SBP election.  Periodically, these Bulletins contain articles explaining SBP and the importance of keeping accounts up to date.

DISCUSSION AND CONCLUSIONS:

1.  While it is indeed regrettable that the FSM died and that he died 6 days before the anniversary of the first year of marriage to the applicant, the law requires marriage of at least 1 year before benefits may be paid to a surviving spouse.

2.  Unfortunately, the FSM was divorced at the time he made his SBP election of children only and there is no evidence to show he took any steps to update his records or change his RCSBP election.  Therefore, even if he had been married to the applicant for a year, she would still not be eligible to receive an SBP annuity because the FSM named his children as the beneficiaries of his SBP annuity and never added the applicant.

3.  Therefore, since the FSM named his children as the beneficiaries of his RCSBP benefits and there is no evidence to show that he ever attempted to change that election or that the election was made in error, the Board has no basis to alter the FSM’s election or to approve the applicant’s request.

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)                                         AR20100010010





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ABCMR Record of Proceedings (cont)                                         AR20100010010



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