IN THE CASE OF:
BOARD DATE: 23 December 2010
DOCKET NUMBER: AR20100019966
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 the Survivor Benefit Plan (SBP) annuity that her deceased husband, a former service member (FSM), paid for and intended for her to receive.
2. The applicant states that while she concurs with the current law that requires a spouse to be married for 1 year prior to being entitled to SBP benefits, her case is unique in that the FSM (a retired major general) was diagnosed with Alzheimer's disease 2 years before his death. She goes on to state that it was the FSM's intent that his SBP annuity be paid to his surviving spouse and he continued to pay the premiums until his death to ensure that it happened. She also states that the 12-month minimum law is meant to protect veterans from those who marry for money and she did not marry the FSM for his net worth, but for her love of him.
3. The applicant provides:
* a two-page letter from the Casualty Assistance Officer
* a copy of the FSM's death certificate
* a copy of the applicant's marriage license to the applicant
* copies of documents related to her application for an SBP annuity
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 1 August 1930 and was commissioned as a U.S. Army Reserve (USAR) second lieutenant on 30 May 1952. He continued to serve and was promoted to the rank of brigadier general on 4 February 1977.
2. He was issued his Notification of Eligibility for Retired Pay (20-year letter) on 17 August 1977 and on 4 February 1980 he was promoted to the rank of major general.
3. On 27 June 1987, he was transferred to the USAR Control Group (Retired).
4. On 1 August 1990, the applicant was transferred to the Army of the United States (AUS) Retired List. He was enrolled in the SBP under the spouse, full coverage option. His spouse's first name was Yvonne.
5. On 15 July 2005, the FSM's spouse (Yvonne) passed away; however, there is no evidence to show the FSM ever notified the Defense Finance and Accounting Service (DFAS) of his spouse's death and premiums continued to be deducted from his retired pay account.
6. The FSM married the applicant on 4 October 2008; however, there is no evidence to show he notified DFAS officials of his marriage to the applicant.
7. The FSM died on 13 July 2009, approximately 9 months after his marriage to the applicant.
8. When DFAS was notified of the FSM's death, the death of his former spouse, and his marriage to the applicant, the applicant was advised that she was not entitled to SBP benefits and all premiums paid by the FSM since the death of his first wife until his death were refunded to the applicant.
9. Public Law 92-425, enacted on 21 September 1972, established the SBP. The SBP 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 94-496, enacted 14 October 1976 but effective 1 October 1976, reduced the waiting period for a new spouse's eligibility from 2 years to 1 year following post-retirement marriage.
DISCUSSION AND CONCLUSIONS:
1. While it is indeed unfortunate and saddening that the applicant and the FSM were not married for 1 full year before the FSM passed away, the law is very specific that an eligible beneficiary is one who has been properly designated to receive SBP benefits and has been married to the service member for at least 1 year.
2. The fact that the applicant was his spouse at the time of his death made her an eligible beneficiary by category; however, the law is clear in this matter and fact that she had not been married to him for at least 1 year made her ineligible to receive the FSM's SBP benefits.
3. The applicant's contentions and the circumstances surrounding her relationship with the FSM have been noted; however, they do not serve to overcome the language and intent of the laws governing SBP. Accordingly, regrettably, there is no basis to grant her 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
___________XXX___________
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) AR20100019966
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ABCMR Record of Proceedings (cont) AR20100019966
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