IN THE CASE OF:
BOARD DATE: 30 December 2014
DOCKET NUMBER: AR20140006475
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 former service member (FSM), requests, in effect, correction of the FSM's record to show she is eligible to receive a Reserve Component Survivor Benefit Plan (RCSBP) annuity.
2. She states she and the FSM had been together as a couple for 33 years prior to their marriage on 20 December 2012. He served in a U.S. Army Reserve (USAR) unit for 26 of those years. They had two daughters together who are now age 26 and 24.
3. She provides:
* letters from the Chief, Reserve Component Retirements Branch, U.S. Army Human Resources Command (HRC)
* DD Form 1172-2 (Application for Identification Card/Defense Enrollment Eligibility Reporting System Enrollment)
* United States Uniformed Services Identification and Privilege Card
* marriage certificate
* Medical Examiner/Coroner Certificate of Death
CONSIDERATION OF EVIDENCE:
1. On 14 February 1985, the FSM enlisted in the USAR.
2. On 17 March 2005, he was notified that he had completed the required years of qualifying Reserve service to be eligible for retired pay upon application at age 60. He was advised that:
a. He was entitled to participate in the RCSBP and that it was his sole means of protecting his retired pay entitlement.
b. He could elect one of three options
* Option A defer enrollment until age 60 when he applied for retired pay
* Option B enroll and pay an annuity when he would have been age 60
* Option C enroll and pay an annuity immediately upon his death
c. He could enroll in Options B and C for spouse, spouse and children, or children only coverage.
d. He was required to make his election within 90 days of the date of the notification.
3. The available records are void of documentation indicating he made an RCSBP election within 90 days of the date he was notified of his eligibility for retired pay.
4. On 30 December 2008, he signed a DD Form 93 (Record of Emergency Data). He indicated he was single and had two daughters born in 1988 and 1990. In item 9a (Designated Person(s)), he entered the applicant's name. In Section 2 (Benefits Related Information), he listed the applicant as his beneficiary for death gratuity and indicated she was his fiancée.
5. Effective 11 August 2011, he was transferred to the Retired Reserve.
6. The applicant provides, in part:
* a marriage certificate showing she married the FSM on 20 December 2012
* a Medical Examiner/Coroner Certificate of Death showing the FSM died on 17 October 2013
* a letter from the Chief, Reserve Component Retirements Branch, HRC, dated 21 March 2014, informing her that she was ineligible to receive an SBP annuity because she had not been married to the FSM for a full year
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. 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 members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.
8. Title 10, U.S. Code, section 1448 provides that a person who is not married and has no dependent child upon becoming eligible to participate in the RCSBP but who later marries or acquires a dependent child may elect to participate in the RCSBP. 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. For the purpose of the RCSBP annuity, a surviving spouse is not considered to be a widow unless she was married to the member for at least 1 year immediately before his death.
DISCUSSION AND CONCLUSIONS:
The applicant and the FSM had been married for less than 1 year at the time of his death. Notwithstanding her statement that they had children together and had been together many years before their marriage, the law bars payment of an RCSBP annuity to any surviving spouse who was married to an FSM for less than 1 year. This Board may not grant relief that would be contrary to law.
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) AR20140006475
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140006475
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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