IN THE CASE OF:
BOARD DATE: 13 November 2012
DOCKET NUMBER: AR20120004626
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, widower of a deceased former service member (FSM), requests correction of his wife's record to show she added him as a Survivor Benefit Plan (SBP) beneficiary within 1 year of their marriage.
2. The applicant states his wife thought that when they married and she updated her personal information those actions would also add the applicant as an SBP beneficiary. His wife, a gray-area retiree, had little or no contact with the military between the date of her retirement and the date of becoming eligible for receipt of retired pay. No one notified her of the requirement to submit a specific form to include him as her SBP beneficiary at the time she completed the Defense Enrollment Eligibility Reporting System (DEERS) submissions or other forms to have him recognized as her spouse.
3. The applicant provides:
* a 1996 DD Form 1883 (SBP Election Certificate)
* a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* a 2011 DD Form 2656 (Data for Payment of Retired Personnel)
* a January 2012 ARPC Form 249-E (Chronological Statement of Retirement Points)
* his State of Wisconsin Original Certificate of Marriage
* the FSM's State of Wisconsin Original Certificate of Death
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 10 July 1952 and she served in an active status in the Wisconsin Army National Guard (WIARNG) from 8 January 1976 through 7 January 1997, at which time she transferred to the Retired Reserve.
2. On 8 February 1996, the FSM had completed a DD Form 1883. She indicated she was not married but she had three children. She elected children only, full and immediate coverage, Option C, Reserve Component SBP (RCSBP). The three children were aged 11, 14, and 16. The form notes this decision is a permanent and irrevocable election.
3. The applicant and FSM married on 21 June 2003. The FSM appears to have completed all required documentation under DEERS to have her spouse properly recognized and, with the exception of the SBP issue, these actions were completed in a timely manner. At this time one of her children was still age eligible for receipt of SBP.
4. In March 2011, the FSM started the processing for receipt of retired pay at age 60. Her DD Form 2656 includes an SBP election option of spouse only. At this point none of her children were eligible SBP beneficiaries.
5. The FSM passed away on 25 November 2011.
6. Although the documentation is not of record, the applicant appears to have requested receipt of SBP and was denied entitlement due to the fact the proper forms were not submitted within 1 year of their marriage.
7. Public Law 95-397, 1978, provided RCSBP as 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.
8. Title 10, U.S. Code, section 1448, provides the law for participation in and changes to SBP and RCSBP options and beneficiaries. It provides guidance for adding a spouse for a person who is not married at the time he/she becomes eligible to participate in and later marries. In order to qualify a service member must submit the request within 1 year of marriage.
DISCUSSION AND CONCLUSIONS:
1. While the applicant's sincerity is not in doubt, there is insufficient evidence to show that the FSM did not receive full and proper counseling in regard to adding a future spouse to her RCSBP/SBP when if she married. Further, it was still her responsibility to assess the financial ramifications occasioned by her change in her family status, to inquire into adding a spouse to her RCSBP/SBP, and ensure any documentation required to add the applicant to her RCSBP/SBP was completed in a timely manner.
2. While it clearly was the FSM's intent that the applicant be covered under SBP, as noted by the DD Form 2656 submitted at the time she applied for retired pay this submission was made 8 years after her marriage to the applicant.
3. The FSM elected Option C at the time of her retirement and her children were covered until they reached their majority. Under this option, she would have been able to add her spouse at the time of marriage. However, the law specifically states that such a request must be made within 1 year of the marriage.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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) AR20120004626
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