IN THE CASE OF:
BOARD DATE: 27 January 2015
DOCKET NUMBER: AR20140008091
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 Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage.
2. The applicant states:
a. The training noncommissioned officer told her and the FSM that they were covered for SBP because they remarried.
b. The FSM served on active duty from 1974 to 1980. He reentered the service in 1990 with the Oregon Army National Guard (ARNG). They married in 1983 and divorced in 2001. The FSM did not remarry while they were divorced. They remarried in April 2005.
c. At that time they were told by a training sergeant from the FSM's unit that their benefits were to remain as they were when they were married in 1983. The FSM originally listed her name as his primary contact, emergency contact, and beneficiary if something should happen to him. This was verified by the training sergeant when they remarried in 2005.
d. The FSM retired on 29 August 2006. He died on 22 November 2013.
e. She applied for survivor annuity on 19 December 2013. She received a letter from the Department of the Army in December 2013 stating they needed more documentation from her. She sent the documentation and she received a second letter stating she was denied benefits.
3. The applicant provides:
* marriage certificate
* divorce decree, dated 2001
* notification of eligibility for retired pay at age 60 (20-year letter)
* record of marriage, dated 2005
* death certificate
* DD Form 2656-7 (Verification for Survivor Annuity), dated 19 December 2013
* Income tax documents
* denial letter from U.S. Army Human Resources Command Reserve Components Retirements, dated 15 January 2014
CONSIDERATION OF EVIDENCE:
1. The FSM served on active duty in the Regular Army from 4 April 1974 to 17 December 1980. He married the applicant on 16 March 1983. After a break in service and service in the U.S. Coast Guard Reserve, the FSM enlisted in the ARNG on 30 August 1990.
2. He and the applicant divorced on 13 April 2001.
3. On 4 November 2004, he was issued his 20-year letter.
4. The FSM remarried the applicant on 23 April 2005.
5. The FSM was honorably discharged from the ARNG on 29 August 2006 and transferred to the Retired Reserve.
6. The FSM died on 22 November 2013 at age 56.
7. On 15 January 2014, the Chief, Retired Pay Branch, U.S. Army Human Resources Command, denied the applicant's request for the survivor benefit annuity. 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. 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.
9. 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 member's 60th birthday, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Once a member elects either options B or C in any category of coverage, that election is irrevocable.
10. 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.
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 received his 20-year letter in 2004.
2. The FSM married the applicant on 23 April 2005 and he had 1 year from his date of marriage to enroll in the RCSBP for spouse coverage. There is no evidence to show he enrolled in the RCSBP for spouse coverage within the given time frame.
3. The FSM also had opportunities to enroll in the RCSBP during the 2005-2006 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) AR20140008091
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ABCMR Record of Proceedings (cont) AR20140008091
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