ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20170005675 APPLICANT REQUESTS: The applicant, former service member (FSM)’s spouse, be awarded the FSM’s Survivor Benefit Plan (SBP) annuity. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self Authored Letter * Marriage Certificate * Divorce Order FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150003058 on 27 October 2015. 2. The FSM’s spouse states: a. She is the widow of the FSM who served for 22 years as a black hawk mechanic. She is requesting an appeal of the decision to decline SBP, spousal support of her deceased husband's retirement from the United States Army. b. At the time the FSM filled out a form stating he did not want his ex-wife to receive his retirement pay, he was going through a bad divorce with his ex-wife. c. She reports the FSM filled out the correct paperwork stating they were married, but was informed it was not submitted timely. The applicant enclosed a copy of the FSM’s divorce decree which was dated around the time the SBP termination paperwork was signed. She also enclosed a marriage certificate that shows the FSM and applicant were married several years after the divorce. d. In 2012 the FSM was diagnosed with stage four cancer and his memory was severely diminished. Many things were left unfinished due to him not being able to physically do things for himself. The cancer spread to his brain and his breathing was often sporadic. The chemotherapy was not effective, and the cancer was aggressive. The applicant feels this should be taken into consideration, as she was the FSM’s primary care taker and was not able to work outside the home. e. The FSM’s retirement check was their only means of income and when the FSM passed, she had to find a job. She was also forced to move out of their home, and she finds herself in financial hardship. She feels she rightfully deserves the FSM’s retirement, and it would be a great help. She would greatly appreciate a reconsideration and allow the spousal support from the FSM’s retirement. 3. The applicant provided a divorce order dated 3 March 2010 showing the FSM was ordered to remove his personal property from a home he shared with his ex-wife in North Carolina. 4. A review of the FSM’s records show the FSM: * 4 April 1978 – enlisted in the Regular Army * 1 July 1997 – married his first wife * 30 April 2000 - retired and appears he elected spouse coverage for SBP * 1 May 2002 - completed a DD Form 2656-2 (SBP Termination Request) with his first wife’s concurrence and the form included an important reminder: Barred Forever- once you discontinue participation, a member cannot reenter the Plan and a member has 30 days after submitting the form to change termination * 3 June 2010 - married current widow (applicant) * 11 February 2015 - completed DA Form 2656-6 (SBP Election Change Certificate), changing coverage from No Coverage to Spouse Only, based on remarriage and the form clarifies remarriage applies to a member whose spouse coverage is suspended due to death of the spouse or divorce 5. Defense Finance and Accounting Service, SBP section, verified the FSM’s SBP was terminated to no beneficiary effective 22 May 2002. 6. The FSM petitioned the Board to correct his record by adding his spouse (the applicant) to his SBP. On 27 October 2015, the Board denied his request. 7. Public Law 105-85 established policy that allows an SBP participant to terminate SBP coverage during the one-year period between the second and third anniversary of the commencement of retired pay. This provision of the law further stipulates that none of the premiums paid will be refunded and no annuity will be payable upon death, and that the participant’s covered spouse or former spouse must consent to the withdrawal. Termination is permanent and participation may not be resumed under any circumstance; future enrollment is barred. Absent the loss of an eligible beneficiary, the law provides no provisions for terminating SBP coverage prior to the two-year anniversary of commencement of retired pay, or after three years of receiving retired pay. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon public law requiring the election of SBP for a spouse within one year of marriage and the FSM failing to add that election in a timely manner, the Board concluded there was no error or injustice which would warrant making a change to the applicant’s record. 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. REFERENCE: Public Law 105-85 established policy that allows an SBP participant to terminate SBP coverage during the one-year period between the second and third anniversary of the commencement of retired pay. This provision of the law further stipulates that none of the premiums paid will be refunded and no annuity will be payable upon death, and that the participant’s covered spouse or former spouse must consent to the withdrawl. Termination is permanent and participation may not be resumed under any circumstance; future enrollment is barred. Absent the loss of an eligible beneficiary, the law provides no provisions for terminating SBP coverage prior to the two-year anniversary of commencement of retired pay, or after three years of receiving retired pay. ABCMR Record of Proceedings (cont) AR20170005675 0 3 1