BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100025313 


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, the widow of a deceased former service member (FSM), requests correction of the FSM's records to show he elected full Survivor Benefit Plan (SBP) spouse coverage.

2.  The applicant states the FSM was not properly briefed when he made his SBP election and did not know about the requirement to apply for SBP within 
1 year of marriage.

	a.  The FSM received his 20-year letter of retirement on 6 October 2000.  At that time they were cohabitating but were not married.  They had two children prior to marriage on 10 January 2003.

	b.  In January 2003, the FSM was mobilized and he served at Walter Reed Army Medical Center 1 year.  He provided a copy of his marriage certificate and birth certificates prior to deployment, but he was not properly briefed regarding the inconsistencies with his SBP election.

	c.  On 1 December 2008, the FSM was diagnosed with Glioblastoma Metimorphe (brain cancer). 

	d.  In November 2009, they were reviewing the FSM's retirement documents and discovered his DD Form 1883 (Survivor Benefit Plan Election Certificate) showed election of children only.  

	e.  On 9 December 2009, they mailed a DD Form 2656-6 (Survivor Benefit Plan Election Change Certificate) to the U.S. Army Human Resources Command, St. Louis, Missouri.  A certified postal card dated 19 January 2010 indicated that the DD Form 2656-6 was received. 

	f.  On 25 December 2009, the FSM passed away.  The applicant received a letter of ineligibility for an SBP annuity.  The two children are currently receiving the SBP annuity.

	g.  the FSM gave 31 years of his life to the U.S. Army and she is sure he would want her, his widow, to be the recipient of his SBP annuity. 
	
3.  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, dated 
19 June 2006
* DD Form 2656-6, dated 9 December 2009
* Personnel Qualification Record - Enlisted, dated in 2006

CONSIDERATION OF EVIDENCE:

1.  The available records show that the FSM initially entered the U.S. Army Reserve (USAR) on 16 February 1978.  His service included 3 years in the Regular Army and approximately 17 years in the USAR and Army National Guard.  

2.  The FSM's DD Form 1883 is not available for review.

3.  The marriage certificate provided by the applicant shows she was married to the FSM on 10 January 2003.

4.  On 2 September 2006, the applicant was transferred to the Retired Reserve.  He had attained the rank of sergeant first class, pay grade E-7, and had completed 20 years and 6 days of qualifying service for retirement.

5.  The DD Form 2656-6 provided by the applicant indicates the FSM requested a change of his SBP election from children only to spouse and children.  The form appears to have the applicant's signature, two children listed with dates of birth of 6 May 1992 and 25 April 2000; and the FSM's signature.  The dates were entered incorrectly, but it appears to indicate the document was completed on 
9 December 2009. 

6.  The death certificate provided by the applicant shows the FSM died on 
25 December 2009, at age 51.

7.  SBP references:

	a.  Public Law 95-397, 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; (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.

	b.  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 one year after the date on which that person marries or acquires that dependent child.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM's records should be corrected to show he elected full SBP spouse coverage.  The applicant also contends it was not 
explained to the FSM that he needed to enroll his spouse in the SBP within 
1 year of their marriage.  

2.  The available evidence clearly shows the applicant and the FSM had two children prior to marriage in 2003.  There is no evidence showing he ever sought advice or information regarding benefits as a result of his change of marital status.  Accordingly, there is no evidence available to show he was not properly counseled with regard to the 1-year requirement to enroll his spouse in the SBP. 

3.  It is apparent that the FSM intended to change his SBP election from child only to spouse and children.  However, he submitted his election more than 
6 years after their marriage, making it untimely and properly rejected. 

4.  Based on the above, the applicant's request should be denied.  

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)                                         AR20100025313



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ABCMR Record of Proceedings (cont)                                         AR20100025313



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