IN THE CASE OF:
BOARD DATE: 27 March 2012
DOCKET NUMBER: AR20110018223
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, that the records of her deceased husband, a former service member (FSM), be corrected to show she is eligible to receive the FSM's Survivor Benefit Plan (SBP) annuity.
2. The applicant appeals for leniency in the decision made by the Defense Finance and Accounting Service (DFAS) regarding her eligibility for SBP and the requirement to have been married to the FSM for at least 1 year prior to his death.
a. The applicant and FSM started their relationship in July 2007 and married on 22 January 2010.
b. The FSM died on 25 December 2010, approximately 1 month shy of the
1-year requirement for her to attain eligibility for his SBP annuity. As a result, DFAS denied her claim to the FSM's SBP annuity.
c. She states the Department of Veterans Affairs (VA) has also denied her claim for survivor benefits.
3. The applicant provides a letter from the FSM to DFAS, her marriage certificate, the FSM's death certificate, a DFAS letter, a VA letter, and seven letters of support.
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the U.S. Army Reserve on 13 December 1942. Records show he was born in January 1924.
2. The FSM was appointed as a Reserve commissioned officer on 11 March 1945. He transferred to the Army National Guard of the United States on 23 June 1947.
3. He was promoted to lieutenant colonel/pay grade O-5 on 21 August 1963.
4. Records show the FSM was previously married to B____ S____ and then to M____ M. T____.
5. On 5 November 1969, the Deputy Chief, Army Personnel Division, National Guard Bureau, Washington, DC, notified the FSM of his eligibility for retired pay at age 60 after having completed the required years of service.
6. Indiana Army National Guard Special Orders Number 51, dated 15 March 1973, assigned the FSM to the U.S. Army Reserve Control Group (Retired Reserve) effective 30 April 1973.
7. A DA Form 3713 (Data for Retired Pay), dated 4 November 1983, shows a change to the percentage of the FSM's retired pay was submitted to DFAS based on his completion of 41 years and 19 days of service for basic pay. Item 31 (Retired Servicemen's Family Protection Plan) does not show an entry.
8. The applicant provides the following documents in support of her application:
a. A letter handwritten by the FSM, dated 11 February 2010, along with a recorded copy of his marriage certificate, provides notice to DFAS that he married the applicant on 22 January 2010. He also requested that DFAS "re-up my SBP for my new bride."
b. A State of Texas Certificate of Marriage shows the applicant and FSM were married on 22 January 2010.
c. A State of Texas Certificate of Death issued on 31 December 2010 shows the FSM died on 25 December 2010. It also shows the FSM was married at the time of his death and the applicant's name is listed as the informant on the certificate.
d. A letter from an Annuity Pay Technician, Annuity Pay Operations, DFAS, undated, responds to the applicant's inquiry concerning the FSM's retired pay account. It shows the applicant was informed that she is not an eligible SBP beneficiary because the 1 year of marriage required for her to become eligible did not elapse before the FSM's death.
e. Seven letters of support from friends and neighbors living at the Air Force Village, San Antonio, Texas, show, in part, the applicant and FSM each lost their spouse in the 2005-2006 time frame. They became a couple in June 2007; they lived together as a couple for nearly 3 years before getting married; and the delay in their marriage was due to the rules of the Catholic Church and a problem in verifying the applicant's baptism.
f. A letter from the VA to the applicant, dated 15 March 2011, notifies her that her claim for dependency and indemnity compensation, death pension, and accrued benefits was denied.
9. In connection with the processing of this case, coordination was made with DFAS. A DFAS official confirmed the FSM provided documents verifying his marriage to the applicant and requested that the applicant be designated as the beneficiary of his SBP annuity.
10. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Retiring members and spouses were to be informed of the SBP options and effects.
11. "The SBP Explained" available on the Internet at: http://www.military.com/ benefits/survivor-benefits/survivor-benefit-plan-explained, shows for "Coverage Available, Spouse Only," that eligibility for this category requires that a surviving spouse be a widow or widower who was married to a retiree at the time of his or her enrollment or, if not married at the time of enrollment, was married to the deceased retiree for at least 1 year prior to the retiree's death.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the FSM's records should be corrected to show she is eligible to receive the FSM's SBP annuity.
2. Records show the FSM was assigned to the U.S. Army Reserve Control Group (Retired Reserve) on 30 April 1973. He enrolled in the Reserve Component SBP with spouse coverage and became eligible for retired pay on 1 January 1984. At the time, he was not married to the applicant.
3. The evidence of record shows the applicant and FSM were married on 22 January 2010 and the FSM notified DFAS of his marriage to the applicant on 11 February 2010.
4. The FSM died on 25 December 2010, less than 1 month before the FSM and applicant would have been married for 1 year.
5. The statute governing the SBP requires that the spouse, if not married at the time of the service member's enrollment in SBP, be married to the deceased retiree for at least 1 year prior to the retiree's death in order to be eligible for the SBP annuity. Unfortunately, the applicant does not qualify for the FSM's SBP annuity.
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) AR20110018223
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