ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 September 2019 DOCKET NUMBER: AR20170003649 APPLICANT REQUESTS: an entitlement to the Survivor Benefit Plan (SBP) annuity, based on the death of her husband, a former service member (FSM). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * FSM’s: * 1980 DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 1883 (SBP Election Certificate) * 1999 National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Death certificate * Affidavit of Common Law Marriage * Consequences of Common Law Marriage information sheet * Direct Deposit Sign-Up Form FACTS: 1. The applicant states: a. Her husband spent 20 plus years in the service and has a pension. At the time, he went through a terrible divorce and had his children listed as beneficiaries, thinking he would never remarry. They were married in 2004. It is a common law marriage and it is legally blinding in the State of Colorado. She sent in the Affidavit of Common Law and other forms completed and notarized; however, she received a letter stating their common law marriage was not recognized. b. She is having a really hard time understanding this because she carries her husband’s last name and had it changed through the Social Security Administration, which is Federal. She has a spouse’s military identification card, which is also Federal. This affidavit is a legal and binding contract and it is notarized. It is exactly like a marriage license in any other States. She and her husband shared everything together; rent, bills, checking account, and loans, etc. c. She has since moved out of their home and currently lives with her 87 year old father. She is sorry this has taken so long, but her husband’s death was so sudden and unexpected; there was no time to do anything and so much has been left undone. She is attempting to pick-up the pieces, but when she lost her husband, she lost a huge portion of the income because he paid for most of their home. She is currently struggling to make ends meet. d. The Affidavit of Common Law was completed because they had to be married in order for her husband to list her as his wife for benefits and life insurance. This was a decision they both made and agreed upon. 2. The applicant provides copies of the following: a. A notarized Affidavit of Common Law Marriage showing she and the FSM entered into a common law marriage on 1 March 2004. \ b. A Consequences of Common Law Marriage information sheet (self- explanatory). c. A death certificate showing the FSM died on 26 February 2016. d. A Direct Deposit Sign-Up Form, dated 2 April 2016. 3. Review of the FSM’s service record shows: a. The FSM was born on 1 March 1962. He enlisted in the Minnesota Army National Guard (MNARNG) on 17 March 1979. b. On 28 May 1999, he was issued a 20-Year Letter. c. An SBP Election Certificate memorandum, dated 5 August 1999, wherein the MNARNG Department of Military Affairs, notified the FSM’s command that a DD Form 1883 for the FSM had not been received in their office and an SBP election must be accomplished within 90 days of receipt of the DD Form 1883. d. On 11 August 1999, the FSM executed an SBP Soldier’s Statement, wherein he acknowledged receipt of counseling on the SBP and he understood his election was in general, permanent and irrevocable. He also executed a DD Form 1883, wherein he indicated he was not married and elected to participate in “Children Only” SBP coverage under Option C (Immediate Coverage). He listed the children’s years of birth as 1987, 1988, 1990, and 1994. e. He was honorably transferred to the Retired Reserve on 1 October 1999. His NGB Form 22 shows he completed over 20 years of total service for retired pay. g. The applicant and the FSM entered into a common law marriage on 1 March 2004. There is no indication he changed his SBP coverage to "spouse" within one year of his marriage. h. He died on 26 February 2016. His death certificate reflects his states as married and the applicant's name appears as the informant with the relationship listed as spouse. h. On 29 August 2019, a staff member of the Defense Finance and Accounting Service advised the Board they were unable to locate any documentation or a retired pay account under the FSM’s name and social security number. 4. There is no evidence to show the FSM attempted to comply with the statutory requirements of enrolling or was denied enrolling the applicant in the SBP within 1 year of their March 2004 marriage and there is no independent evidence of Government error or that misinformation was given to the FSM or applicant by Government personnel. 5. By law (Title 10, U.S. Code, section 1448(a)(5), a person who is not married and has no dependent child (eligible until age 18, if unmarried full-time student and unmarried) upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan. 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. 6. Periodically, Congress passes laws that establish Open Seasons which allow SBP enrollment or changes. For example, Public Law 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006. All of these Open Seasons were extensively publicized in Army Echoes to ensure all retirees were informed of their existence. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the SBP election made by the FSM on 11 August 1999, whereby he elected children only coverage, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the SBP election of the FSM. 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 92-425, enacted 21 September 1972, established the Survivor Benefit Plan (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. An election, once made, was irrevocable except in certain circumstances. This law, as amended, also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. 2. Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component (RC) members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60. Three options were available: * Option A – elect to decline enrollment and choose at age 60 whether to start SBP participation * 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 * Option C – elect that a beneficiary receive an annuity immediately upon their death if before age 60 3. Once a member elects either option B or option C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in the RCSBP – the options automatically roll into SBP coverage. If RCSBP Option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection should the member have died prior to age 60. 4. Title 10 USC, Section 1452(b)(1) provides the legal authority for reduction in retired pay for RCSBP participants with regard to “Child-Only Annuities.” Section 1452(b)(3) states, in pertinent part, that in the case of a participant in the Plan who is providing child-only coverage during a period before becoming entitled to receive retired pay, the retired pay of the participant shall be additionally reduced by an amount prescribed under regulations by the Secretary of Defense to reflect the coverage provided under the Plan during the period before the participant became entitled to receive retired pay. Section 1452(b)(2) further states that there shall be no reduction in retired pay for any month during which the participant has no eligible dependent child. 5. Title 10, U.S. Code, section 1448 governs the SBP. a. Section 1448(a)(1), the program established by this subchapter shall be known as the SBP. T he following persons are eligible to participate in the Plan: Persons entitled to retired pay and persons who would be eligible for reserve- component retired pay but for the fact that they are under 60 years of age. b. Section 1448(a)(4)(B) Reserve-component annuity; an election under paragraph (2)(B) is irrevocable if not revoked before the end of the 90-day period referred to in that paragraph. c. Section 1448(a)(5), participation by person marrying after retirement, etc. A person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan. 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. Such an election may not be revoked except in accordance with subsection (b)(3). The election is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned. In the case of a person providing a reserve-component annuity, such an election shall include a designation under subsection (e). 5. Periodically, Congress passes laws that establish Open Seasons which allow SBP enrollment or changes. For example, Public Law 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006. All of these Open Seasons were extensively publicized in Army Echoes to ensure all retirees were informed of their existence. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170003649 3 1