IN THE CASE OF:
BOARD DATE: 4 January 2013
DOCKET NUMBER: AR20120008111
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 that the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP).
2. The applicant states that after the FSM retired from the Nebraska Army National Guard (NEARNG) in May 2008, they had lived together and purchased a home prior to their marriage in September 2010. She states that she and the FSM had a serious discussion about their future. He wished to have a civil marriage as opposed to a commitment ceremony. The reason he gave was that it was important to him that she be the recipient of his retirement pension and his social security benefits in case of his death.
3. In an effort to establish what benefits she would be eligible for after their marriage, the County Veterans Service Office told them she would not be eligible for SBP benefits until the FSM turned 60 years of age. After their honeymoon, the FSM attempted to change his RCSBP election by adding her and their daughter to his RCSBP. His intent was to make the RCSBP change; however, the FSM died before he could make the change.
4. The applicant provides:
* the FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* a State of Nebraska License and Certificate of Marriage, dated
27 September 2010
* a State of Nebraska Certificate of Death, dated 15 February 2011
* a 2009 Department of Treasury - Internal Revenue Service Form
1040 (U.S. Individual Income Tax Return)
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 17 January 1955. He had prior service in the Regular Army. He enlisted in the NEARNG on 3 March 1976.
2. The FSM's records contain an NEARNG memorandum of Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 1 October 1987.
3. On 16 March 1993, the FSM completed a DD Form 1883 (SBP Election Certificate). On the form he indicated that he was divorced and had a dependent son. He declined RCSBP enrollment and elected to choose at age 60 whether to start RCSBP participation.
4. On 1 February 2001, the FSM was transferred to the Retired Reserve.
5. The FSM and the applicant married on 19 September 2010. He died on
11 February 2011 at the age of 57.
6. Public Law 92-425, the SBP, enacted 21 September 1972, 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. It required a 2-year waiting period for new spouse eligibility following post-retirement marriage. Public Law 94-496, enacted 14 October 1976, reduced this waiting period to
1 year following post-retirement marriage.
7. 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.
DISCUSSION AND CONCLUSIONS:
1. The FSM declined RCSBP enrollment and chose to defer to age 60 his decision whether to start SBP participation.
2. He and the applicant were married on 19 September 2010. In order for the applicant to be an eligible RCSBP annuity recipient, the law requires she and the FSM to have been married for at least 1 year. Regretfully, he passed away in February 2011 prior to the 1-year anniversary required by law for the applicant to be an eligible beneficiary. Therefore, she is ineligible for payment of the FSM's RCSBP annuity.
3. The FSM's faithful service and the applicant's devotion to the FSM are not in question. However, his participation in the RCSBP was subject to the program's statutory requirements. This Board lacks the authority to change or waive the statutory definitions of eligible beneficiaries.
4. Regrettably, in view of the foregoing there is no basis for granting the applicant's 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) AR20120008111
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ABCMR Record of Proceedings (cont) AR20120008111
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