IN THE CASE OF:
BOARD DATE: 25 January 2011
DOCKET NUMBER: AR20100016746
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 she be paid an annuity under the Survivor Benefit Plan (SBP).
2. 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. She also states at that time they enrolled in the RCSBP and elected option B, spouse-only coverage, based on the full amount of his retired pay.
3. She provides:
* DD Form 2656 (Data for Payment of Retired Personnel)
* DD Form 1883 (SBP Election Certificate)
* Department of the Army Reserve Personnel Form 3856 (RC Supplemental SBP Election Certificate)
* memorandum from the Office of the Adjutant General, dated 9 March 1994
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* marriage certificate
* FSM's death certificate
* memorandum from the Defense Finance and Accounting Service (DFAS), dated 16 April 2010
CONSIDERATION OF EVIDENCE:
1. The FSM's records show he was born on 30 November 1949.
2. The FSM's 20-year letter, dated 9 March 1994, notified him he had completed the required years of service and he would be eligible for retired pay upon application at age 60.
3. On 31 March 1994, the FSM completed a DD Form 1883. He indicated he was not married, elected RCSBP coverage for his two dependent children, and elected option C (immediate coverage) for the full base amount.
4. Item 8b (Effective Date) of his NGB Form 22 shows the FSM was discharged and was transferred the USAR Control Group (Retired) on 31 March 1994. At that time the applicant had completed 20 years, 8 months, and 13 days of qualifying service for retired pay at age 60.
5. On 19 May 2006, the FSM married the applicant.
6. On 12 November 2008, the FSM submitted a DD Form 2656 indicating he had a wife and no dependent children. The form shows he elected option B, spouse-only coverage, based on the full amount of his retired pay. The FSM signed the form; however, it is witnessed but not notarized.
7. On 11 January 2010, the FSM died at the age of 60.
8. The applicant submitted a memorandum from DFAS Casualty Department Retired Pay Operations, dated 16 April 2010, which states the FSM elected to participate in the RCSBP with child-only coverage upon retirement eligibility, on 31 March 1994. For her to be eligible for an RCSBP annuity, the FSM would have had to notify the Reserve center within 1 year of their marriage. Based on the FSM's election, his application for spouse SBP and/or RCSBP was denied.
9. 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; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.
10. 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. However, if a person has eligible dependents in either category and chooses to decline coverage he or she is precluded from adding subsequent dependents except during Open Season enrollment periods.
11. 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
."
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that she is entitled to receive an SBP annuity based on the death of her husband, an FSM, was carefully considered. However, there is insufficient evidence to support this claim.
2. By law and regulation, RC Soldiers who complete 20 or more years are issued a 20-year letter that informs them of their retirement eligibility and are offered the opportunity to enroll in the RCSBP. The law in effect at the time required the Soldier to make an election and return the enrollment form within 90 days of receipt. The FSM's records indicate he had no eligible spouse at the time he made his election and elected children-only RCSBP.
3. By law, incident to a member's marriage/remarriage, a member who has no dependent children and has not previously elected SBP spouse coverage has 1 year from the date of marriage to provide an annuity for his or her spouse by making such an election. There is no evidence the FSM did so.
4. The applicant failed to provide any evidence supporting her contention that the FSM was not properly informed about the rules for electing SBP entitlements.
Therefore, in view of the foregoing, there is no basis for granting the applicant's requested relief.
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 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) AR20100016746
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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