IN THE CASE OF:
BOARD DATE: 1 December 2011
DOCKET NUMBER: AR20110009807
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 the records of her deceased spouse, a former service member (FSM), be corrected to reflect that she is a legitimate beneficiary of his Survivor Benefit Plan (SBP) benefits.
2. The applicant states that she was married to the FSM at the time of his death.
3. The applicant provides a copy of the FSMs death certificate and a copy of their marriage license.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 13 April 1928. He was inducted on 8 January 1953 and served until he was retired by reason of length of service on 30 April 1973. He had served 20 years, 3 months and 17 days of active service. His records show that he was married with two dependents; however, there is no evidence in his official records to show that he elected to participate in the SBP.
2. A review of copies of leave and earnings statements contained in his official records shows no deductions being made for SBP coverage.
3. The applicant married the FSM on 11 August 1984 in Falls County, Texas. The FSM passed away on 14 December 1984, only 4 months and 3 days after marrying the applicant. He was 56 years of age at the time of his death.
4. Public Law 92-425, enacted 21 September 1972, established SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.
5. SBP is a life insurance program which pays an annuity to eligible beneficiaries upon the deaths of covered former service members. As a Federal Government insurance program, partially subsidized by participants premiums, it is strictly governed by Federal statutes that set forth rules for its operation, including eligibility for enrollment, designation of beneficiaries, and authorized changes to beneficiaries. Retirees do not earn SBP through their service they earn the right to participate in SBP. As with any private insurance endeavor, it is encumbent upon individuals to timely apply to participate.
6. 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. In the alternative, a widow may be an SBP beneficiary if she is the mother of issue by that marriage.
7. 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 applicants contentions that she should be designated as the legitimate beneficiary of the FSMs SBP benefits has been noted and appears to lack merit.
2. The law in effect at the time of the FSMs death required a 1-year waiting period after marriage to be deemed an eligible beneficiary under the SBP or there must have been a child by that marriage. Notwithstanding that there is no evidence to show that the FSM was enrolled in and participated in the SBP, the applicant was only married to the FSM for a period of 4 months and 3 days before his death. There is also no evidence that she is the mother of a child by that marriage. Therefore, she was not an eligible beneficiary under the SBP.
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) AR20110009807
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ABCMR Record of Proceedings (cont) AR20110009807
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