IN THE CASE OF:
BOARD DATE: 16 January 2014
DOCKET NUMBER: AR20130003414
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 paperwork submitted for the SBP was never received or made a part of the FSM's record
* according to the FSM, he submitted the SBP paperwork
* according to the FSM, everything was taken care of, so she saw no reason to question it
* she expected to hear something about the SBP and when she did not, she began to make inquires to find out the problem
3. The applicant provides:
* a Marriage Certificate
* the FSM's Certificate of Death
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 31 January 1942. He enlisted in the U.S. Army Reserve (USAR) on 9 December 1963.
2. The FSM's record contains:
a. a 20-year letter, dated 15 July 1985, that informed the FSM he had completed the required years of service and he would be eligible for retired pay upon application at age 60. The letter further states he had 90 days in which to elect to participate in the SBP or remain uncovered until he became age 60 and was again afforded the opportunity.
b. a DD Form 2656 (Data for Payment of Retired Personnel), dated
15 February 2001, that shows he did not have a spouse or dependent children and as a result, elected not to apply for the SBP.
3. The FSM and the applicant were married on 6 January 2002.
4. Orders Number P-09-305823, issued by the USAR Personnel Command,
St. Louis, MO, dated 19 September 2001, shows he was retired and placed on the retired list on 31 January 2002.
5. The FSM's record is void of any evidence showing he elected SBP coverage at any time.
6. On 8 December 2011, the FSM died at the age of 69. The Certificate of Death shows the applicant was married to the FSM at the time.
7. Public Law 95-397, the Reserve Component 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.
8. 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.
9. 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, a newsletter mailed to all Retirees and surviving spouses that update them on their benefits and entitlements.
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 was not married nor did he have any dependents. Therefore, he was not required to make an SBP election.
3. The FSM married the applicant on 6 January 2002, was placed on the retired list on 31 January 2002, and he passed away on 8 December 2011.
4. 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 marriage, in conjunction with being placed on the retired list, or during the 2005 Open Season enrollment period. There is also no evidence the FSM ever paid any SBP premiums.
5. 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) AR20130003414
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130003414
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120021457
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. On 15 May 1999, the FSM married the applicant. 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.
ARMY | BCMR | CY2012 | 20120006493
The applicant provides the FSM's: * 1972 discharge orders * Notification of Eligibility for Retired Pay at Age 60 letter * Armed Forces Reserve Medal memorandum * Enlisted Qualitative Retention Board Recommendation for Retention/Non-retention memoranda * U.S. Army Reserve (USAR) Control Group (Retired) memorandum * Meritorious Service Medal orders and certificate * USAR Identification Card and Selected Service Registration Card * Dissolution of Marriage Judgment from Exxxxxxxx Rxxx, her...
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 | CY2007 | 20070006453
The applicant states, in effect, that upon retirement from the Utah Army National Guard (UTARNG), he was unmarried and thus elected the children only coverage of the Reserve Component SBP. This application was dated 2 March 2007 by the applicant and received by the Army Board for Correction of Military Records (ABCMR) on 27 April 2007. On 20 December 2005, HRC emailed DFAS (responding to HRC's email dated 14 November 2005) and asked "If the FSM elects to cover spouse during the open...
ARMY | BCMR | CY2005 | 20050013725C070206
Edward E. Montgomery | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. 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; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. ...
ARMY | BCMR | CY2010 | 20100020185
The applicant, the widow of a deceased former service member (FSM), requests correction of the FSM's records to show he elected spouse Survivor Benefit Plan (SBP) coverage and payment of the SBP annuity based on his death. c. in Section XI (SBP Spouse Concurrence) (Required when member is married and elects children only coverage or does not elect full spouse coverage, or declines coverage), item 30 (I hereby concur with the SBP election made by my spouse. This form shows the FSM indicated...
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 | 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 | CY2004 | 2004101899C070208
Since he had elected children only coverage, he had to elect either option B or option C. If he were married, he and his spouse had to sign the reverse of the DD Form 1883. The available evidence of record shows that the FSM was not married to the applicant in May 1989; therefore, he could not have elected spouse coverage at that time. The available evidence of record shows that the FSM and the applicant married in October 1989; therefore, by the time the March 1992 letter was sent out...
ARMY | BCMR | CY2008 | 20080011056
Application for correction of military records (with supporting documents provided, if any). The applicant requests, in effect, reconsideration of her earlier petition to the Board requesting the records of her deceased husband, a former service member (FSM), be corrected to show that he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage. However, the evidence of record gives no indication that the FSM ever submitted an SBP election form to...