IN THE CASE OF:
BOARD DATE: 25 June 2013
DOCKET NUMBER: AR20120021457
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 a deceased former service member (FSM), requests correction of the FSM's record to show he elected Survivor Benefit Plan (SBP) coverage and designated her as the annuitant of the SBP.
2. The applicant states:
* the FSM was divorced when he retired
* the FSM married the applicant after he retired, but never informed the Defense Accounting and Finance Service (DFAS) to change his SBP election
* the FSM's SBP election is incorrect because they were married from
15 May 1999 to the date of death
* the corrected SBP election should read "spouse coverage based on full retirement pay," not "no beneficiary"
* she understands she will have to pay for coverage from the date of their first anniversary until his death
3. The applicant provides:
* the FSM's Divorce Decree, dated 20 December 1994
* the FSM's DD Form 2656 (Data for Payment of Retired Personnel), dated 27 December 1994
* their marriage certificate, dated 15 May 1999
* the FSM's Certificate of Death
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 12 March 1935. He was commissioned as an officer in the U.S. Army Reserve on 31 July 1959.
2. The FSM's 20-year letter, dated 6 October 1981, notified him he had completed the required years of service and he would be eligible for retired pay upon application at age 60.
3. The FSM's record contains and the applicant submitted a copy of the FSM's Divorce Decree that shows the FSM and his first wife were divorced on
20 December 1994. The Decree is silent on the issue of SBP.
4. The FSM's record contains and the applicant submitted a DD Form 2656 that was signed by the FSM and witnessed on 27 December 1994. The form shows in:
* Item 14 (Marital Status) an "X" in the "Single" block
* Item 28g (Beneficiary Category (ies)) a "?" in "g. I elect not to participate in the SBP (I do not have eligible dependents under the plan)"
5. The FSM retired from the Army on 12 March 1995.
6. On 15 May 1999, the FSM married the applicant.
7. On 20 October 2012, the FSM died at the age of 77. The Death Certificate shows the applicant was married to the FSM at the time.
8. Public Law 95-397, the Reserve Components SBP (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. 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. If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.
9. 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 that dependent child. However, if a person has eligible dependents in either category and chooses to decline coverage he or she is precluded from adding subsequent dependents except during Open Season enrollment periods.
10. DFAS interprets the first part of Title 10, U.S. Code, section 1448(a)(5), to mean,"
who is not married OR has no dependent child
."
11. Public Law 108-375, enacted on 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. Extensive publicity was given in Army Echoes.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that she should be designated as the annuitant of her deceased spouse's SBP was carefully considered.
2. The evidence of record shows that prior to his retirement, the FSM and his first wife were divorced. The FSM made an election declining SBP. The FSM married the applicant on 15 May 1999 and he passed away on 20 October 2012.
3. There are no documents in the available record, or provided by the applicant, that shows the FSM ever made an election to participate in the SBP within 1 year of his remarriage or during an Open Season enrollment period. There is also no evidence the FSM ever paid any SBP premiums. The Army provided extensive publicity and opportunities to enroll in the SBP during each Open Season.
4. In the absence of evidence that the FSM ever elected to participate in the SBP, there is no basis to now designate the applicant as the recipient of said benefits.
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) AR20120021457
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20120021457
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2015 | 20150001716
The applicant provided a letter she received from HRC, Reserve Components Retirements - Retired Pay Branch, dated 18 July 2014, which stated: This is in reference to your eligibility for Survivor Benefit annuity based on the military service of the FSM]. Since Reserve Soldiers are not eligible to receive their retired pay until after they have made their application for retirement at the age of 60, when they complete the DD Form 1883, they have the option to elect to participate in the...
ARMY | BCMR | CY2002 | 2002076503C070215
The applicant requests correction of military records as stated in the application to the Board and as restated herein. If the member was married but elected not to participate at the maximum level or elected to provide an annuity for a dependent child but not for his spouse, that member’s spouse would be notified of that election. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the member was...
ARMY | BCMR | CY2013 | 20130003414
The applicant, the widow of a deceased former service member (FSM), requests correction of the FSM's record to show he elected Survivor Benefit Plan (SBP) coverage and designated her as the annuitant of the SBP. The evidence of record shows that prior to his retirement, the FSM was not married nor did he have any dependents. There are no documents in the available record, or provided by the applicant, that show the FSM ever made an election to participate in the SBP within 1 year of his...
ARMY | BCMR | CY2011 | 20110005377
The applicant, the widow of a deceased former service member (FSM), requests correction of the FSM's record to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse and child coverage. 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. Three options are available: (A)...
ARMY | BCMR | CY2014 | 20140008091
The applicant, the widow of a deceased former service member (FSM), requests correction of her husband's records to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage. The denial letter states: * by law, the FSM had 1 year from the date of marriage (23 April 2005) to elect coverage for his spouse * the FSM never made an election for spouse coverage * the applicant's request for payment must be denied 8. The evidence shows the FSM was...
ARMY | BCMR | CY2005 | 20050005632C070206
On 22 October 1999, the FSM elected to terminate his participation in the SBP. The applicant's daughter is listed as the annuitant on DFAS's 17 February 2005 letter to the applicant. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the FSM did not request termination of his SBP in October 1999 but continued to remain enrolled in the SBP for child-only coverage; b. collecting any SBP costs due; and c. paying to...
ARMY | BCMR | CY2007 | 20070005326
The applicant, as the widow of a deceased former service member (FSM), requests, in effect, that the FSM's records be corrected to show that he completed an RCSBP (Reserve Component Survivor Benefit Plan) election certificate and that she be granted a Survivor Benefit Plan (SBP) annuity. Public Law 95-397, the Reserve Component Survivor Benefit Plan (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...
ARMY | BCMR | CY2006 | 20060012822
The FSM divorced M___ E___ in 1982. MEMBER NEVER CANCELED HIS SBP ELECTION AFTER HIS DIVORCE. The evidence of record shows he was not married to the applicant at the time of his death.
ARMY | BCMR | CY2008 | 20080006415
Notification of Eligibility for Retired Pay at Age 60 Memorandum, dated 17 November 1988. c. DD Form 1883, dated 7 January 1989. d. Certificate of Marriage, dated 2 August 2000. e. Miscellaneous letters and Designation of Beneficiary Forms from the New York State Police and Fire Retirement System. This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60. Even if the FSM had been able to enroll the...
ARMY | BCMR | CY2013 | 20130022330
After a period of divorce, they remarried in 2010 and remained married until his death in 2013. A review of the FSM's records indicated the FSM elected not to participate in the SBP upon his retirement in 1987. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the FSM made a voluntary change in election from "former spouse and child" coverage to "spouse and child" coverage on 1 June 2010 (the first day of the...