BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120010361 


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 she be awarded the annuity benefits of her deceased spouse, a former service member (FSM), under the Reserve Component Survivor Benefit Plan (RCSBP).

2.  The applicant states:

   a.  She was denied SBP benefits as the FSM's widow because they had only been married for 10 1/2 months.  The FSM served in the Army National Guard (ARNG) for over 20 years.  He thought she would be taken care of.

	b.  Her husband, the FSM, passed away after a very brave battle with cancer. When they were married he had his cancer under control and doctors advised them that he could possibly live for several more years.  However, he died on 
20 June 2010, just 10 months and 13 days later.  He would have been 60 years old on 15 August 2010.  A new and totally different cancer invaded his lungs a few weeks before his death.  It was very aggressive and uncontrollable.

	c.  Her husband was very proud of the time he spent in the military.  He was also proud of the fact that he could provide income and health insurance for her because of his time in the service.  She was his only caregiver.  She drove him to Cheyenne, Wyoming, twice a week and sat with him during hours of chemotherapy treatments, pet (positron emission tomography) scans, doctor appointments, and hospitalization.  She took care of him at home as well. 

   d.  She and the FSM had only been married a short time, but they had been together for several years.  Her husband was worried about her also losing her father.  Her father passed away 3 days after the FSM on 23 June 2010.  It has been hard.  She would appreciate some help.  

3.  The applicant provides:

* FSM's Notification of Eligibility for Retired Pay at Age 60
* FSM's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* FSM's ARNG separation orders
* Request for Change of Beneficiary
* DD Form 2656-6 (SBP Election Change Certificate)

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show he was born 15 August 1950.  He enlisted in the Wyoming Army National Guard (WYARNG) on 20 April 1970.  

2.  On 24 April 1990, the FSM was issued a Notification of Eligibility of Retired Pay at Age 60.

3.  On 18 June 1990, the FSM completed and signed a DD Form 1883 (SBP Election Certificate).  In Section II (Marital Dependency & Election Status) he stated he was not married and had dependent children.  He elected Option A declining SBP coverage.  The FSM stated that this was the only election of coverage he had submitted under the SBP.  The FSM signed the form and his signature was witnessed as required on 8 December 1991.

4.  The reverse side of the DD Form 1883 explained that if Option A was elected, the member was declining to make an election at that time but would remain eligible to make an election for coverage at age 60.  If the retiree did not elect option B or C at that time, and should die before age 60, the survivors would not receive any benefits under Public Law 95-397.  

5.  The FSM was honorably discharged from the WYARNG on 4 July 1992.  He was credited with completing 22 years, 2 months, and 15 days of total service for pay.

6.  The applicant provided a Request for Change of Beneficiary, dated 14 August 2009, wherein the FSM designated the applicant as the beneficiary of his life insurance.

7.  The applicant also provided a copy of the FSM's DD Form 2656-6, dated 15 October 2009, which showed the FSM had elected no current SBP coverage. He listed his status as "married" and requested SBP coverage for "spouse and children."  The FSM listed the applicant as his spouse and their date of marriage as 7 August 2009.  He also listed a daughter with a date of birth of 24 October 2000.

8.  The DA Form 2656-6, Section III (Conditions that Trigger Eligibility to Change Coverage), Number 8 (I Am Requesting a Change in Coverage Based On:), shows the FSM marked the "Marriage" block which stated, "A member, who does not have a spouse at the time of initial eligibility, may provide SBP for the first spouse acquired after retirement by elective coverage before the first anniversary of that marriage.  Coverage and cost begin on the first anniversary of the marriage (coverage begins immediately upon the birth of a child to the member and spouse beneficiary.)

9.  The FSM died on 20 June 2010.  He would have reached age 60 on 15 August 2010.

10.  On 27 July 2010, a staff member of the Defense Finance and Accounting Service (DFAS), Retired Pay Section, advised the WYARNG that the FSM had made a change in his RCSBP because he was married in August 2009.  A service member (SM) must have been married for one year before he/she passes away for a new spouse to be covered.

11.  Public Law 92-425, 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.  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.

12.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday; or (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.


DISCUSSION AND CONCLUSIONS:

1.  On 2 April 1990, the FSM was notified of his eligibility for retired pay at age 60.  On 18 June 1990, he declined coverage under the RCSBP.  He and the applicant were married on 7 August 2009.  He completed a DD Form 2656-6 on 15 October 2009 electing SBP coverage for spouse and child.  The applicant was named as his spouse.  The FSM died on 20 June 2010, prior to reaching his 60th birthday.

2.  The applicant's contention was carefully considered.  The evidence of record shows her claim for RCSBP was denied because she and the FSM had not been married for one year before the FSM died.  DFAS verified the FSM made a change in his RCSBP because he married in August 2009.  However, by law, his death prior to his one year anniversary prevents payment of an annuity.  RCSBP coverage and cost begin on the first anniversary of the marriage.

3.  Based on the foregoing, there is no legal basis to grant the applicant relief.  Unfortunately, she is not entitled to an annuity under the RCSBP. 

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)                                         AR20120010361





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ABCMR Record of Proceedings (cont)                                         AR20120010361



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