IN THE CASE OF:
BOARD DATE: 15 March 2012
DOCKET NUMBER: AR20110018601
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, entitlement to Survivor Benefit Plan (SBP) benefits based on the death of her former husband, a former service member (FSM).
2. The applicant states, in effect, she is providing documents that show her deceased former spouse made an SBP election for spouse coverage in August 1997.
3. The applicant provides:
* The FSM's U.S. Army National Guard (ARNG) Notification of Eligibility for Retirement Pay at Age 60
* A DD Form 1883 (SBP Election Certificate)
* Orders
* A divorce decree
* A certificate of death
* A DD Form 2656-7 (Verification for Survivor Annuity)
* A Standard Form 1199A (Direct Deposit Sign-Up Form)
* A letter
CONSIDERATION OF EVIDENCE:
1. The FSM's records show he was born on 19 April 1955. Having had prior service, he enlisted in the ARNG on 11 December 1982.
2. He and the applicant (Cxxxxxx) were married on 15 July 1994. They had two children born on 13 October 1982 and 4 July 1985, respectively.
3. On 31 July 1997, by memorandum, the ARNG issued the FSM a Notification of Eligibility for Retired Pay at Age 60. This memorandum notified the FSM that he had completed at least 20 years of qualifying service and would be eligible for retired pay upon application at age 60.
4. On 14 August 1997, he completed a DD Form 1883, wherein he indicated he was married at the time with two dependent children. This form also shows he elected "spouse and children" full coverage under option C (immediate coverage).
5. On 1 September 1997, he was honorably discharged from the ARNG and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserves).
6. The applicant provides a divorce decree, dated 6 November 2003, that shows she and the FSM were divorced on that date. The divorce decree ordered their assets to be split equally based on an oral separation agreement between the parties. The divorce decree is silent on the subject of alimony, retired pay, and SBP.
7. On 1 March 2011, the FSM died at the age of 55. He was married at the time of his death. His spouse's name was Bxxxxxx.
8. Public Law 95-397, the RCSBP, 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. Elections are made by category, not by name.
DISCUSSION AND CONCLUSIONS:
The evidence of record shows the FSM elected spouse and children RCSBP coverage under Option C (immediate coverage) at the time he received his
20-year letter. SBP coverage is made by category and not by name. The divorce decree did not award the applicant the SBP. As the FSM was married at the time of death his widow would receive the SBP annuity. Therefore, the applicant is not entitled to the requested relief.
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) AR20110018601
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ABCMR Record of Proceedings (cont) AR20110018601
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