IN THE CASE OF:
BOARD DATE: 22 November 2011
DOCKET NUMBER: AR20110006387
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, in effect, a Survivor Benefit Plan (SBP) annuity.
2. The applicant states, in effect, her deceased husband was a former service member (FSM) of the South Carolina Army National Guard (SCARNG). On 7 September 1995, he received his notification of eligibility for retired pay at age 60 (20-Year Letter). At that time, he made an illegal SBP election when he elected child only coverage based on the full amount of his retired pay under Option C (immediate coverage). He never obtained the applicant's approval for an option less than spouse only coverage.
3. The applicant provides:
* a June 1993 Handbook on Retirement Services with highlighted passages
* a State of South Carolina, Probate Court, Fiduciary Letters, dated 16 September 2010
* a State of South Carolina marriage certificate
* a State of South Carolina death certificate
* an Order of Service for the FSM's funeral
CONSIDERATION OF EVIDENCE:
1. The applicant and the FSM were married on 15 October 1981.
2. The FSM served in the SCARNG from 2 July 1974 to 1 July 1996. On 7 September 1995, he received his 20-Year Letter stating he qualified for non-regular retirement at age 60.
3. On 2 December 1995, the FSM completed a DD Form 1883 (Survivor Benefit Plan Election Certificate). At that time, he elected:
* children only coverage
* for a daughter born on 14 April 1982
* for a son born on 9 August 1984
* an annuity based on the full amount of his retired pay
* Option C, immediate coverage
* the form is signed by the FSM and witnessed by his first sergeant; however, it is not signed by the applicant
4. The FSM died on 6 March 2010 at age 56. His children were ages 27 and
25 at the time of his death.
5. 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.
6. Public Law 99-145, enacted 8 November 1985, but effective 1 March 1986, required a spouses written concurrence for a retiring active duty members election that provides less than maximum spouse coverage (10 USC 1448(a)(3)(A)).
7. Public Law 106-398, enacted 30 October 2000, requires Reserve and Guard members, who have completed their service obligation and considered entitled for retired pay, but who are not yet age 60, to obtain their spouses' concurrence
in SBP elections that do not provide maximum spouse coverage (immediate option). This applies to members receiving notification of service completion after 1 January 2001.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests an SBP annuity as a result of the FSM's death.
2. When he completed his DD Form 1883 in 1995, the FSM was not required to obtain the applicant's signature if he elected other than spouse only maximum SBP coverage. He elected children only coverage and he did not obtain the applicant's concurrence. This was a legal election and is, therefore, valid.
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.
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