IN THE CASE OF:
BOARD DATE: 16 September 2010
DOCKET NUMBER: AR20100010247
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 retired former service member (FSM), be corrected to show he made a voluntary election for spouse coverage under the Survivor Benefit Plan (SBP) within 1 year of their marriage.
2. The applicant states, in effect, that it was the FSM's intent to elect her as his SBP beneficiary after their marriage, but apparently he was confused about the process because of the brain tumor from which he suffered and later died.
3. The applicant provides the FSM's death certificate, their marriage license, and a direct deposit change.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 13 December 1953. His military records show he enlisted in the Regular Army on 18 December 1972. He was released from active duty on 5 December 1975 and served in the U.S. Army Reserve until he again enlisted in the Regular Army on 23 March 1977.
2. On 1 February 1994, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel). On this form he indicated that he was not married, that he had dependent children and that they were not incapable of self support because of a mental or physical incapacity, and that he elected to participate in the SBP for dependent children-only coverage at the full base amount.
3. On 30 April 1994, the FSM was retired and placed on the Retired List the following day in the rank of sergeant first class/pay grade E-7.
4. On 14 January 2006, the applicant and the FSM were married in the State of Texas.
5. A telephone conversation between a member of the Board staff and a staff member at the Defense Finance and Accounting Service revealed the retiree's SBP election status to be "no beneficiary" since at least 1 July 2002.
6. The FSM died on 22 January 2010.
7. Public Law 92-425, the SBP, enacted on 21 September 1972, 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. Elections are made by category, not by name. Changes in SBP options are not authorized except in specific instances or authorized by law.
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 1 year after the date on which that person marries or acquires that dependent child.
9. The Defense Finance and Accounting Service 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."
DISCUSSION AND CONCLUSIONS:
1. The FSM was not married when he elected to participate in the SBP for dependent children-only coverage in February 1994. He married the applicant in January 2006.
2. The applicant contends the FSM intended to elect her as his SBP beneficiary after their marriage, but apparently he was confused about the process because of the brain tumor from which he suffered. By law, the FSM was required to enroll the applicant for spouse SBP coverage within 1 year of their marriage if it was his intent to do so. However, there is no independent evidence showing he ever intended to submit or attempted to submit such an enrollment request. There also is no evidence that he lacked the capacity to understand the enrollment process in the year after their marriage.
3. Regrettably, in view of the foregoing, there is no basis for granting 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) AR20100010247
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100010247
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2010 | 20100016746
She states she and her deceased husband, a former service member (FSM), married on 19 May 2006 and did not realize she had to be enrolled in the Reserve Component SBP (RCSBP) within 1 year of marriage until 20 November 2008 when they completed the FSM's application for retired pay. On 19 May 2006, the FSM married the applicant. Based on the FSM's election, his application for spouse SBP and/or RCSBP was denied.
ARMY | BCMR | CY2013 | 20130004639
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant, the widow of a deceased former service member (FSM), requests correction of her husband's record to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage. He married the applicant on 6 September 1985.
ARMY | BCMR | CY2012 | 20120021457
The applicant, the widow of a deceased former service member (FSM), requests correction of the FSM's record to show he elected Survivor Benefit Plan (SBP) coverage and designated her as the annuitant of the SBP. On 15 May 1999, the FSM married the applicant. There are no documents in the available record, or provided by the applicant, that shows the FSM ever made an election to participate in the SBP within 1 year of his remarriage or during an Open Season enrollment period.
ARMY | BCMR | CY2010 | 20100025313
The applicant provides copies of her marriage certificate, death certificate, DD Form 2656-7 (Verification for Survivor Annuity) dated 8 December 2010, and a letter from the National Personnel Records Center with the following enclosures: * Letter of Retirement, dated 1 May 2006 * Letter from The Adjutant General, Virginia Army National Guard, dated 12 May 2010 * DD Form 93 (Record of Emergency Data), dated 19 June 2006 * Servicemembers' Group Life Insurance Election and Certificate,...
ARMY | BCMR | CY2001 | 2001060887C070421
APPLICANT REQUESTS: That the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage. EVIDENCE OF RECORD : The FSM's military records from the Army National Guard are not available. DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
ARMY | BCMR | CY2009 | 20090005149
She adds that she only found out after his death that he never discussed the SBP with her or elected SBP coverage for her. On 20 October 2003, the FSM married his second spouse, the applicant. The evidence of record shows that prior to his retirement, the FSM made an SBP election for children only coverage.
ARMY | BCMR | CY2009 | 20090013510
In Part V (SBP Election) on this form, the FSM indicated that he was married and did not have dependent children. 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. Considering there is evidence to show it was the FSM's intent to provide SBP coverage for the applicant, it would be appropriate, as a matter of...
ARMY | BCMR | CY2010 | 20100010010
The FSM was born on 23 February 1968 and he enlisted in the Louisiana Army National Guard (LAARNG) on 11 August 1986. 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. _______ _ X _______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for...
ARMY | BCMR | CY2013 | 20130007260
The applicant, as the widow of a deceased former service member (FSM), requests correction of the FSM's military records to show he changed his Survivor Benefit Plan (SBP) coverage to spouse coverage during an Open Season from 1992 through 1993. The FSM retired on 31 August 1985 and he elected dependent child only coverage. The available evidence shows the FSM made a written request to add the applicant to his SBP coverage.
ARMY | BCMR | CY2008 | 20080005890
The applicant provides: a. The FSM, upon reaching age 60 and making application for non-regular retired pay, completed DA Form 4240 indicating that he desired full SBP coverage. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing that the FSM properly completed and timely filed DA Form 4240 electing to provide for spouse only, full SBP coverage at the time he applied for non-regular retired pay; and b. paying to...