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