IN THE CASE OF:	  

		BOARD DATE:  8 April 2014

		DOCKET NUMBER:  AR20130012872 


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 her husband's records to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage.

2.  The applicant states:

	a.  For some reason her husband did not make the change to include her in the SBP as his wife.  It seems he did not make the proper notification to the Defense Finance and Accounting Service (DFAS) about SBP in 2000 when they married on 26 October 2000.

	b.  Her husband retired with 20 years of active duty service.

	c.  The error was made when they married in October 2000.  They had been together since 1996.  Before they married, they discussed the issues of SBP and life insurance.  She continued to remind him to properly update the records to avoid this situation she is experiencing now, but he kept postponing it until it was too late.  She is now left with the mortgage and various other financial obligations and the only income she receives is from the Social Security Administration, which is $1,512.00 per month.  The mortgage alone is $1,052.00 per month and that amount has increased to $1,156.00 per month now that she is behind on her payments.  The error her husband made in 2000 will cause her to lose her house and become homeless.



3.  The applicant provides:

* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* marriage certificate
* FSM's death certificate
* Certificate of Appreciation
* letter from DFAS to a Member of Congress, dated 5 June 2013
* letter from a Member of Congress, dated 20 June 2013

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 30 August 1977.

2.  A DD Form 2656 (Data for Payment of Retired Personnel), dated 8 August 1997, shows the FSM elected children-only SBP coverage based on his full retired pay.  This form shows he was not married.

3.  The FSM retired in the rank of sergeant first class on 31 August 1997.

4.  The FSM married the applicant on 26 October 2000.

5.  The FSM died on 3 December 2012.

6.  The applicant provided a letter from DFAS to a Member of Congress, dated 5 June 2013, which stated:

* the FSM retired on 1 September 1997
* he was not married at the time, but he had minor children and he elected children only SBP coverage
* he married the applicant on 26 October 2000, but he did not notify DFAS within 1 year of that marriage that he wished to elect spouse SBP coverage
* his lack of an SBP election constitutes a declination of SBP spouse coverage and for this reason no annuity is payable to the applicant 

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.  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.

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.

9.  Department of Defense Financial Management Regulation 7000.14-R, volume 7B (Military Pay Policy and Procedures – Retired Pay), paragraph 430601B2, states that if the member has no eligible spouse on the date of retirement and elected coverage for children only, the member may include the spouse with coverage previously elected for the children within 1 year after marriage or remarriage.

10.  Every issue of Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army, contains the information, "Remember:  You are responsible for updating your retired pay file information at DFAS-CL…within one year of the event if you marry, remarry…and need to make or update an SBP election."

11.  Public Law 108-375, enacted 28 October 2004, established an open enrollment season from 1 October 2005 through 30 September 2006.  The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.  Extensive publicity was given in Army Echoes.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the FSM was not married when he retired and he elected SBP coverage for children only on 8 August 1997.

2.  The FSM married the applicant on 26 October 2000 and he had 1 year from his date of marriage to enroll in the SBP for spouse coverage.  There is no evidence to show he enrolled in the SBP for spouse coverage within the given time frame.

3.  The FSM also had opportunities to enroll in the SBP during the 2004-2005 open enrollment season, but there is no evidence to show he did so.  Regrettably, 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 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)                                         AR20130012872



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ABCMR Record of Proceedings (cont)                                         AR20130012872



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