IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20100022811


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 late husband, hereafter referred to as the former service member (FSM), be corrected to show her as the beneficiary of his Survivor Benefit Plan (SBP).

2.  The applicant states she and the FSM were married in November 2006 and they went to Fort Carson, CO, to complete the necessary paperwork to enroll her and her children in the Defense Enrollment Eligibility Reporting System (DEERS) and notify the Defense Finance and Accounting Service (DFAS) of their marriage for SBP purposes.  They had to return to Fort Carson several times because required documents were missing or mislaid; however, they both thought the matter was successfully concluded.  In January 2007, the FSM discovered DFAS had her listed as his beneficiary, but his former wife's date of birth was recorded.  The FSM was told it was because his former wife was receiving part of his retired pay as a condition of their divorce.  On 14 July 2010, the FSM died.  The applicant notified DFAS and found she was not properly enrolled in the SBP at that time.

3.  The applicant provides:

* the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* the FSM's death certificate
* the applicant's and FSM's marriage license


* DD Forms 1173 (Identification and Privilege Card) for the applicant and her children
* power of attorney
* the FSM's retiree account statement for January 2010
* Beneficiary Designation Form (for FSM's civilian employment)
* divorce decree for the FSM and the FSM's former wife
* former wife's marriage certificate
* letter requesting benefits [not found with application]
* SBP information
* email messages between the applicant, Fort Carson Army Community Service Center, and DFAS
* DD Form 2656-7 (Verification for Survivor Annuity)
* Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments)

CONSIDERATION OF EVIDENCE:

1.  The FSM was a retired sergeant first class/E-7.

2.  The FSM and his first wife F____ divorced on 21 August 2003 prior to his retirement.  The divorce decree and accompanying property settlement awarded an interest in the FSM's retired pay to his former wife F____, but did not award SBP coverage.

3.  The FSM's DD Form 214 shows he was honorably retired on 30 September 2004 and placed on the Retired List on 1 October 2004.  A DD Form 2656 (Data for Payment of Retired Personnel) provided by DFAS shows the following:

* retirement date – 1 October 2004
* spouse – F____
* child – S____ with a date of birth of 23 July 1991
* SBP election – 26b, coverage for spouse and child(ren)
* date signed – 7 July 2004

4.  The FSM's former wife F____ remarried on 12 November 2004 in Denver, CO.

5.  The applicant and the FSM married in Palmer Lake, CO, on 12 November 2006.  On 20 November 2006, the applicant and her minor children were issued DD Forms 1173 and they were enrolled in DEERS.



6.  The FSM died on 14 July 2010.

7.  The FSM's retiree account statement shows he was paying SBP premiums for coverage for spouse/child(ren).  It also shows his former wife was receiving her court-awarded interest in his retired pay.

8.  The applicant submitted the following email messages.

	a.  The Fort Carson Survivor Outreach Services Financial Counselor stated to the U.S. Army Installation Management Command in a message, dated 19 July 2010, "I am working with [applicant], surviving spouse of [FSM].  They were married in November 2006 and came to Fort Carson in 2007 to update her as the beneficiary of his SBP, but for some reason this was not updated in the system."

	b.  A DFAS Retired and Annuity Pay contact representative stated to the applicant in a message, dated 24 September 2010, "Sergeant [FSM] submitted a Designation of Beneficiary form within 1 year of the date of your marriage.  At that time he probably thought he was covering you under the SBP…since he had spouse and child coverage when he retired, he probably thought you were covered when he sent the form in….Based on my research, it is obvious to me that Sergeant [FSM] intended to cover you under the SBP."

9.  DFAS stated in an email to this Board, dated 9 May 2011, the FSM's DD Form 2656 was submitted by Fort Carson on 3 November 2004 and shows he elected spouse and child(ren) coverage.  The FSM paid SBP premiums from his retirement account to 1 month prior to his death.  DFAS acknowledged the FSM wrote on 9 September 2009 seeking to change his SBP coverage and provided a marriage certificate showing his marriage to the applicant, but he failed to provide a divorce decree from F____.  He requested that the applicant be registered as his new spouse under SBP, but this was not accomplished because DFAS did not receive his divorce decree from F____.

10.  Public Law 92-425, enacted 21 September 1972, established SBP.  SBP is a plan whereby a portion of a military retiree's pay is paid to a category of beneficiary.  Without this plan, all retired pay would stop upon the death of the retiree.  The plan, which is partially funded by the government, is paid for by monthly deductions from the retired pay of the member.  The decision to elect in or out of the coverage is made at the time of retirement and is generally irrevocable.  Elections are made by category, not by name.  A spouse loses eligibility as an SBP beneficiary upon divorce.

11.  Title 10, U.S. Code, section 1448, provides for participation by service members marrying after retirement.  The service member's election to participate must be written, signed, and received within 1 year after the date on which service member marries or acquires a dependent child.

12.  Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976, provided that spouse costs would be suspended if marriage ends in death or divorce.  The waiting period for a new spouse's eligibility was reduced to 1 year following post-retirement marriage.

13.  Public Law 90-485, enacted 13 August 1968, provided that children are eligible for SBP payments as long as they are unmarried, under age 18, or under age 23 if still in school.  A child who is disabled and incapable of self-support remains eligible if the disability occurred before age 18 (or before age 23 if a full-time student).  Marriage at any age will terminate a child's eligibility.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests to be awarded an SBP annuity as a result of the death of her late husband, the FSM.

2.  The FSM divorced F____ in August 2003 and retired from active duty in October 2004.  SBP participation was not mandated by the divorce decree.  Nonetheless, the FSM elected SBP spouse and child(ren) coverage, listing F____ as his spouse.  This election, as pertains to the spouse portion of the coverage, was invalid because the FSM had no spouse; the child portion of the election was, however, valid as his daughter S____ was 13 years of age at the time.

3.  The applicant and the FSM married in November 2006 and they had 1 year within which to add the applicant to the FSM's SBP coverage.  This was not done and, although the applicant contends numerous attempts were made, there is no independent evidence supporting her contention.

4.  There is insufficient evidence to show the FSM added the applicant to his SBP within 1 year of their marriage.  However, even though the spouse portion of the FSM's SBP election was invalid, the child coverage election remained and still remains valid.  The daughter S____ by his first marriage remains potentially eligible for a portion of the SBP annuity depending on the status of her schooling.  The applicant's own minor children will remain eligible for a portion or all of the annuity until at least the 18th birthday of the youngest child.



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)                                         AR20100022811



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ABCMR Record of Proceedings (cont)                                         AR20100022811



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