BOARD DATE: 26 January 2012
DOCKET NUMBER: AR20110015352
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 payment of the Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM).
2. The applicant states:
* the requirement to be married for at least 1 year to be eligible for the SBP benefits is an injustice to her and her late husband
* her late husband paid into the plan with an intention of leaving the annuity to the applicant
* she and the FSM had been friends for approximately 36 years prior to their marriage in April 2010
* he was the love of her life and when they married, their marriage was going to be forever; however, he passed away in November 2010
* his annuity had been paid in full which technically means he met the
1-year requirement
* officials at the Defense Finance and Accounting Service (DFAS) informed her she was ineligible for the annuity because she had not been married to the FSM for at least 1 year and 1 day
* neither she nor her late husband were aware of the 1-year requirement
* the Board should waive the 1-year requirement based on the fact that her late husband had paid up the SBP in full and his death was unexpected
* she lives on a limited income and the annuity would essentially improve her standard of living
3. The applicant provides:
* FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* FSM's Retiree Account Statement, January 2010
* FSM's marriage license
* FSM's death certificate
* Air Force IMT Form 58 (Casualty Assistance Summary)
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 3 May 1918.
2. Having prior service, he was appointed as a Reserve commissioned officer of the Army and entered active duty on 18 June 1943. He served in a variety of stateside and overseas assignments and he attained the rank of major (MAJ).
3. His records show he was previously married to J____ and they had two sons.
4. He retired on 31 December 1958 and he was placed on the Retired List in the rank of MAJ on 1 January 1959.
5. DFAS records show he elected spouse SBP coverage based on the full amount and his coverage was effective 1 January 1974. His SBP premiums were paid up on 1 October 2008 (based on the law). DFAS records also show he had no beneficiary as of 9 October 2009 which suggests his first spouse died on that date.
6. The FSM's January 2010 Retiree Account Statement shows he had spouse SBP coverage, but there was no charge for his coverage because he was paid up.
7. He and the applicant were married on 12 April 2010.
8. On 7 November 2010, the FSM died. His death certificate shows he was married to the applicant at the time of his death.
9. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election once made was irrevocable except in certain circumstances. The law required a 2-year waiting period for a new spouse's eligibility following post-retirement marriage.
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.
11. Public Law 105-261, enacted 17 October 1998, established paid-up coverage under the SBP. Effective 1 October 2008, no reduction may be made in the retired pay of a participant in the SBP for any month after the later of: (1) the 360th month for which the participant's retired pay is reduced or (2) the month during which the participant attains age 70.
DISCUSSION AND CONCLUSIONS:
1. The FSM elected SBP spouse coverage effective 1 January 1974. He served faithfully and made payment of his SBP premiums until he was paid up effective 1 October 2008.
2. He and the applicant were married on 23 April 2010. In order for the applicant to be an eligible SBP annuity recipient, the law requires that she and the FSM to have been married for at least 1 year. Regretfully, he passed away in November 2010 prior to the 1-year anniversary required by law for the applicant to be an eligible beneficiary. The years he was married to his former spouse are not transferable to the applicant. Therefore, she is ineligible for payment of the FSM's SBP annuity.
3. The FSM's faithful service and the applicant's devotion to the FSM are not in question. However, his participation in the SBP was subject to the program's statutory requirements. This Board lacks the authority to change or waive the statutory definitions of eligible beneficiaries.
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.
__________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) AR20110015352
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ABCMR Record of Proceedings (cont) AR20110015352
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