IN THE CASE OF:	  

		BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100015270 


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 his deceased spouse’s Survivor Benefit Plan (SBP) be granted to him.

2.  The applicant states that he was unjustly denied his wife’s military retirement annuity because they were married for less than one year.  He states that he and the former service member (FSM) lived together as husband and wife for 3 years prior to the date of their marriage.  He states his former spouse’s terminal cancer and its medical treatment plan delayed the date of their marriage.  He also states that he was married during this period and was in the process of securing a divorce from his first wife but because of medical treatment expenses, he did not have the necessary funds for its associated costs.  He states he and the FSM had joint bank accounts and jointly leased a townhouse together.  He concludes by stating his deceased wife served in the Iowa National Guard for 33 years and her wishes should be honored.

3.  The applicant provides a letter from the U.S. Army Reserve Personnel Command (AR-PERSCOM), a divorce decree, a lease memorandum and a letter from the FSM's bank. 

CONSIDERATION OF EVIDENCE:

1.  On 17 November 1973, the FSM enlisted in the State of Iowa Army National Guard (ARNG) for a 3-year period of service.  Records show she served continuously and received by memorandum her notification of eligibility for retired pay at age 60 on 7 January 1994. 
2.  On 10 February 1994, the FSM submitted a DD Form 1883 (Survivor Benefit Plan Election Certificate) showing she elected full coverage for a person of insurable interest (her sister) under Option C (Immediate Coverage).

3.  On 31 May 2006, the FSM was transferred to the Retired Reserve and received a National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service) that shows he completed 32 years, 6 months, and 14 days of net service.

4.  The FSM and the applicant were married in the State of Iowa in Polk County on 26 February 2009.

5.  On 24 March 2009, the FSM initiated and completed a DD Form 2656 (Survivor Election Plan Election Change Certificate) changing her insurable interest party to spouse only coverage based on her marriage to the applicant.

6.  The FSM's records maintained in the interactive Personnel Electronic Records Management System (iPERMS) shows his date of death as 7 December 2009. 

7.  By letter, AR-PERSCOM, Transition and Separations Branch notified the applicant that he was not eligible for the FSM’s SBP annuity because he and the FSM were not married for one full year before the FSM’s date of death.  

8.  As evidence to support his application, he submitted a letter from a credit union that states, in effect, he and the FSM held a joint savings and checking account since August 2006.  He also submitted a letter from his landlord stating, in effect, that he and the FSM rented a townhouse together from him for 2 years.  The third document is an unsigned and undated Iowa District Court document stating the applicant and the FSM had been living together for 3 years, that the FSM had stage-4 lung cancer, and that it would be in the best interest of all parties to waive the 90-day divorce-waiting period.   

9.  Public Law 92-425, the SBP, enacted 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.  It required a 2-year waiting period for new spouse eligibility following post-retirement marriage.  Public Law 94-496, enacted 14 October 1976, reduced this waiting period to 1 year following post-retirement marriage.  The legislative history of the SBP shows that Congress’ purpose in requiring a 2- or 1-year waiting period was to prevent sham marriages and to prevent spouses who become widows/widowers of SBP participants only by virtue of a short-term marriage after retirement from automatically receiving an annuity.

10.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to receive SBP benefits based on the death of his wife, a FSM, was carefully considered.  The applicant states, in effect, that the reasons he and the FSM did not marry earlier were due to a lack of money so he could divorce his first wife and then marry the FSM.  

2.  Records show the FSM was not married when she retired after successfully completing 33 years of active and inactive service in the Army National Guard.  Upon receipt of her 20 Year Letter in 1994, she had elected Option C of the RCSBP for an insurable interest party, her sister.

3.  Public records show the applicant and the FSM were married on 26 February 2009.  On 24 March 2009, the FSM completed a DD Form 2656-6 and made the SBP election for Spouse Only Coverage in the full base amount allowed by law.  

4.  On 7 December 2009, the FSM died in the state of Iowa.  She was 54 years old at the time of her death.

5.  There is sufficient evidence in this case for the Board to conclude that the applicant and the FSM entered into a valid marriage; that their marriage was not a sham marriage designed to take advantage of the FSM’s physical condition or just to acquire an SBP annuity.  However, the applicant and FSM were not married for the requisite one-year period prior to the FSM’s premature death due to terminal lung cancer.  The applicant and FSM only entered into matrimony under the laws of the state of Iowa after the applicant had divorced his first wife.  The applicant and FSM were married less than nine months at the time of the FSM’s death.  Therefore, the applicant did not meet the requisite one-year waiting period prior to becoming eligible for the RCSBP.  Therefore, there is insufficient evidence to grant 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)                                         AR20100015270





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ABCMR Record of Proceedings (cont)                                         AR20100015270



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