IN THE CASE OF:
BOARD DATE: 14 August 2012
DOCKET NUMBER: AR20120002627
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 the records of her deceased husband, a former service member (FSM), be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage, based on the full amount.
2. The applicant states the FSM was divorced at the time of retirement. His 1992 election was listed as no beneficiary. She and the FSM were married on
23 June 1996 and he failed to update his SBP election to spouse coverage based on the full amount. She realizes if his records are now corrected, she would have to pay the cost of SBP coverage from 1997 until her husband's death in November 2011 and that she would start receiving the SBP annuity after all premiums are paid.
3. The applicant provides:
* the FSM's prior judgment of divorce
* an SBP information printout
* her authorization for marriage
* her marriage certificate
* the FSM's death certificate
CONSIDERATION OF EVIDENCE:
1. On 5 May 1969, having had prior enlisted service, the FSM was appointed as a Reserve commissioned officer. He entered active duty on 28 June 1975 and served in a variety of stateside or overseas assignments. He attained the rank of major (MAJ).
2. On 18 January 1989, the FSM and his former spouse, Jeanne, were divorced.
3. On 22 April 1992, in connection of his retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel). He indicated that he was single and had no dependent children; he elected to decline SBP coverage. He and a witness authenticated this form by placing their signatures in item
19 (Signature of Member) and item 20 (Signature and Address of Witness).
4. The FSM was honorably retired on 31 July 1992 and he was placed on the retired list in his retired rank of MAJ on 1 August 1992.
5. On 23 June 1996, the FSM and applicant were married.
6. On 14 October 2011, the FSM died. His death certificate shows he was married to the applicant at the time of death.
7. There is no evidence in the FSMs pay records at DFAS that show he participated in the SBP and/or contributed any premiums towards SBP.
8. 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. This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.
9. Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999-29 February 2000. The retiree must have paid monthly premiums starting on the date of enrollment and a one-time, lump sum enrollment premium. Extensive publicity was given in Army Echoes.
10. Public Law 108-375 established an Open Season that began on 1 October 2005 and lasted 1 year. Those who took advantage of the open season were required to participate for at least 2 years from the date of making such an election in order to qualify their survivors for benefits. If the retiree died before the end of this 2-year period, amounts deducted from retired pay to effectuate the benefits resulting from the open season would be returned to the designated survivor. Premiums charged were calculated based on the total amount of the premium, plus interest, by which the members retired pay would have been reduced if they had elected to participate in the SBP at the first opportunity that
they had been afforded. One-time, buy-in enrollment premiums were due at the time the retiree filed an open enrollment election, although the retiree could elect to defer any portion of the open enrollment premium and have the amount deducted from retired pay in 24 equal monthly installments.
DISCUSSION AND CONCLUSIONS:
1. Prior to retirement the FSM was provided an opportunity to make an SBP election. He was single at the time and he willingly and in writing elected not to participate in SBP on 22 April 1992.
2. He and the applicant were married on 23 June 1996. He had an opportunity at the time to enroll his spouse in the SBP within a specific timeframe from the date of his marriage but he did not do so. Additionally, the law established two Open Seasons to be conducted from 1 March 1999 to 29 February 2000 and October 2005 - September 2006, thus allowing the FSM additional opportunities to enroll in a category in the SBP. There is no indication he did so. There is no error or injustice.
3. In view of the foregoing, there is insufficient evidence to grant 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) AR20120002627
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ABCMR Record of Proceedings (cont) AR20120002627
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