IN THE CASE OF:
BOARD DATE: 2 October 2012
DOCKET NUMBER: AR20120005059
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, the widow of the deceased former service member (FSM), requests, in effect, correction of the FSM's records to show he elected Reserve Component Survivor Benefit Plan (RCSBP) spouse coverage effective within one year of their marriage and that she be paid the annuity.
2. She states the FSM and she were married on 11 August 2007. She adds that at the time of their marriage, the FSM asked about SBP and was told by his unit to bring a copy of the marriage certificate when he applied for retirement at age 59. She maintains they were not told that they had one year from their marriage to submit a change for SBP.
3. She provides the following:
* DD Form 2656-7 (Verification for Survivor Annuity)
* Orders 6-1 and 195-17, dated 11 March 1985 and 6 October 1994, respectively
* U.S. Army Human Resources Command (HRC) letter, dated 2 February 2012
* DD Form 1883 (SBP Election Certificate), dated 7 September 1991
* Marriage License
* Direct Deposit Sign-Up Form
* Form W-4P (Withholding Certificate for Pension or Annuity Payments)
*
Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 8 August 1991
* Army National Guard (ARNG) Retirement Points History Statement, dated 29 October 2010
* Certificate of Death
* DD Form 108 (Application for Retired Pay Benefits), dated 3 November 2010
* DD Form 2656 (Data for Payment of Retired Personnel), dated
3 November 2010
CONSIDERATION OF EVIDENCE:
1. On 2 June 1971, the FSM enlisted in the ARNG. His date of birth was listed as 5 October 1951.
2. On 8 August 1991, the FSM received his 20-Year letter. The SBP Summary and a DD Form 1883 were listed as enclosures to the letter.
3. On 7 September 1991, he completed a DD Form 1883 indicating that he was not married, but had children. He elected full immediate coverage for children only. He listed his two children with dates of birth of 13 November 1971 and
22 July 1976 as his beneficiaries.
4. On 1 June 1994, the FSM was separated from the ARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).
5. On 26 June 2007, the FSM and the applicant were married.
6. The applicant provided a DD Form 2656, dated 3 November 2010, that designates her as the FSM's beneficiary. This form shows in Block 26a (Beneficiary Category(ies)) the FSM elected spouse only coverage. In block 27 (Level of Coverage) the FSM elected full gross pay without supplemental SBP. This form was witnessed, but not notarized.
7. The FSM died on 20 November 2010. The death certificate lists his marital status as married and lists the applicant as his spouse.
8. On 2 February 2012, the Chief, Retired Pay Branch, HRC, responded to the applicant's inquiry concerning her entitlement to the SBP annuity based on the death of the FSM. The representative said their records show the FSM filed an SBP Election Certificate on 7 September 1991, electing children only. Upon his
marriage, he had one year from that date to make an election change and submit it to that command. Since the FSM did not properly execute a Survivor Benefit Election Change designating the applicant as beneficiary, she is not eligible for an annuity.
9. 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. Changes in SBP options are not authorized except in specific instances as authorized by law.
10. Army Echoes is the Army bulletin published and mailed to retirees and gray-area retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. The September - December 2007 (and subsequent issues) informed retirees about Pay/SBP. The bulletin provided a website as well as telephone numbers concerning "Pay inquiries and update of pay or SBP records in case of death, divorce or remarriage." It states members are responsible for updating pay files information within 1 year if they marry and need to make or update an SBP election.
11. Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires dependent children.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that she and the FSM were unaware of the requirement to make an SBP election within one year of the date of marriage is not sufficiently mitigating to warrant granting the requested relief. Such information was provided to all retirees and gray-area retirees in Army Echoes.
2. The evidence of record shows the FSM did not attempt to change his SBP coverage until 3 November 2010, more than 3 years after his marriage to the applicant.
3. Unfortunately, in view of the foregoing, there is no basis for granting her request.
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) AR20120005059
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ABCMR Record of Proceedings (cont) AR20120005059
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