ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 October 2020 DOCKET NUMBER: AR20200002114 APPLICANT REQUESTS: in effect, as spouse of the Former Service Member (FSM), to receive the FSM's Survivor Benefit Plan (SBP) annuity. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2656-6 (SBP Election Change Certificate) * Certificate of Death * Last Will and Testament * Email from US Army Human Resources Command (HRC) * letter from HRC FACTS: 1. The applicant, the spouse of the FSM, states the SBP annuity has been denied. 2. The FSM's service records include the following documents for the Board's consideration: a. A memorandum from US Army Reserve Personnel Command, dated 16 January 2002, Subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), which states upon receipt of the letter the FSM, if married, would automatically be enrolled into SBP under spouse and children based on full retired pay. She must notify the command, using the DD Form 1883 SBP Election Certificate, of her decision regarding SBP within 90 days. b. A Chronological Statement of Retirement Points, dated 14 December 2006, which shows the FSM has 22 years of total service. c. A Certificate of Death, which shows the FSM died on 13 October 2019, at the age of 58 years old. d. A letter from HRC, dated 6 December 2019, which states the applicant's claim for a SBP annuity based on the military service of her late spouse, was denied. Their records indicated upon her marriage to the FSM an election change was made and submitted to the command within one year from that date; however, public law 94-496 states that the waiting period for new spouse's eligibility is one year following post retirement. Since they were married for less than one year, she was not eligible for an annuity. e. A DD Form 2656-7 (Verification for Survivor Annuity), dated 23 January 2019, which shows: * the FSM died on 13 October 2019 * the type of benefit claimed was SBP for spouse only * she and her spouse were married on 8 November 2018 * the applicant signed the form on 23 October 2019 f. Included with the DD Form 2656-7 was a W-4 (Employee's Withholding Allowance Certificate), a Direct Deposit Sign-up Form, and a voided check. 3. The applicant provides the following documents for the Board's consideration: a. A DD Form 2656-6 (SBP Election Change Certificate), dated 24 January 2019, which shows: * the FSM completed the document showing she had no coverage * she was changing the coverage because of a marriage * she was changing it to spouse only coverage * she was asking for the coverage to be based on her full retired pay * she and the applicant were married on 8 November 2018 b. A Certificate of Death, which shows the FSM died on 13 October 2019. The applicant was listed as her spouse and as the informant. c. FSM’s Last Will and Testament which states what the FSM gives and bequeaths to the applicant. There is no mention about the Survivor Benefits Plan specifically by name. d. An email from HRC, indicating the form the FSM's spouse would need to complete in order to receive the annuity when the time came and email regarding applying to the ABCMR. e. A letter from HRC, dated 23 November 2019, which states the same information as HRC’s 6 December 2019 letter, see 3d above. The applicant's request for the FSM's SBP was denied. Upon their marriage, the FSM had one year to make an election change and submit it to HRC. Since she did not submit the SBP Election Change designating the applicant as the beneficiary, the applicant was not eligible for an annuity. 4. See applicable references below. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determind relief was not warranted. Based upon the fact that applicant and the FSM were married less than a year and the provisions of 10 U.S.C. 1447(7) stating a new spouse is not eligible until one year following post retirement, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the HRC decision concerning the applicant’s SBP eligibility. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 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. REFERENCES: 1. 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. Option A elect to decline enrollment and choose at age 60 whether to start SBP participation. b. Option 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. Option C elect that a beneficiary receive an annuity immediately upon their death if before age 60. 2. Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and had 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 one year after the date on which that person marries or acquires that dependent child. 3. DoDI 1332.42 (Survivor Annuity Program Administration) Special Rules Concerning Elections (1) In the case of a member electing SBP or RC-SBP coverage for a spouse who was not married to the member at the time the member became eligible for retired pay, the surviving spouse must have been married to the member for at least 1 year immediately prior to the member’s death or be the parent of issue by that marriage to be an eligible beneficiary. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002114 4