ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 21 November 2019 DOCKET NUMBER: AR20170007081 APPLICANT REQUESTS: payment of 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) * Applicant letter * Letter form the Defense Finance and Accounting Service (DFAS) informing the applicant she is not an eligible beneficiary as the one year of marriage requirement for you did not elapse before [FSM] death * Marriage License from the state of Ohio Lucas County dated 29 August 2014 * State of Michigan Department of Community Health Certificate of Death dated 10 July 2015 * 1040 tax returns reflecting they had the same home address * Public Service Credit Union, statement of account of the applicant * Quick Claim Deed reflecting the couples address * Notification of Eligibility for Retired pay at age 60 dated 26 February 2001 * National Guard Bureau Report of Separation and Record of service FACTS: 1. The applicant states, she and the FSM were together for 7 years. They resided together since 2011. They were married on 29 August 2014 and he passed away on 10 July 2015, 51 days before their first wedding anniversary and they had a cruise planned to celebrate it. She understands that the 1 year rule of marriage was enacted to eliminate "bedside marriages." their marriage did not occur due to his sudden illness (Liver Disease). Their relationship was solid and his liver disease incapacitated him without warning and took his life very quickly. If she were denied, she would be forced to sell her home. Her income alone is not sufficient enough to pay the house note, utility bills, car note/ insurance and general living expenses. 2. The applicant provides, a letter stating she is resubmitting her paperwork regarding her appeal for her deceased husband pension. Enclosed in this packet is the denial letter from DFAS. Also included is a copy of her credit union statement and income tax returns from 2013 and 2014. Showing that they lived at the same resident for a few years before he died. She is asking for reconsideration regarding his military pension. * Letter, dated 25 August 2015, form the DFAS informing the applicant she is not an eligible beneficiary as the one year of marriage requirement for you did not elapse before FSM death. Marriage License from the state of Ohio Lucas County dated 29 August 2014 * Notification of Eligibility for Retired pay at age 60 dated 26 February 2001 * National Guard Bureau Report of Separation and Record of service reflecting (Total Service for Retired Pay) 20 Years 3 months 24 days 4. The former service member (FSM) record shows: a. The FSM was born in May 1955. He enlisted in the Army National Guard on 22 January 1980. b. Notification of Eligibility for Retirement Pay at age 60 informing the FSM that he has completed the required years of service to received pay at the age of 60 dated 26 February 2001. c. His NGB Form 22 reflects that on 15 May 2001, he was honorably discharged, under the provisions of National Guard Regulation 600-200, para 8-26a(2) for Enlistment in any component of the Armed Forces. He had 20 years, 3 months and 24 days of total service for retired pay. d. The FSM and Van__, the applicant were married on 29 August 2014. e. The FSM died on 10 July 2015. His death certificate lists Van__, the applicant as the informant and wife. f. Following his death, the applicant submitted a DD Form 2656-7 (Verification for Survivor Annuity). This form reflects in item 2a (Claimant Verification) Xxxxxx Xxxxxx X. Item 1d (date of death) 10 July 2015 Item 2g (Type of Benefit claimed) Survivor Benefit Plan (SBP) and item 2h (Relationship to Decedent) spouse. Item 3a (was legally married to member on the date of death) yes. Item 3a (1) (date of marriage to member) 29 August 2014. g. On 25 August 2015, DFAS wrote back concerning her entitlement to the SBP annuity from the military retired pay account of your deceased husband. The SBP was enacted to provide retired members of the Uniformed Services an opportunity to provide a portion of their retired pay to their survivors. The SBP allows retired members of the Uniformed Services to provide a portion of their retired pay to their beneficiaries. She would have become eligible to be designated as an SBP beneficiary after she and the member had been married one year. She and the FSM were married on August 29, 2014. The member died on July 10, 2015. She was not an eligible beneficiary as the one year of marriage requirement for her did not elapse before his death. She could contact your local Department of Veterans Affairs (DVA) office to inquire if she is entitled to DVA military spouse benefits. 5. By law, a spouse becomes an eligible spouse beneficiary under SBP upon the one year anniversary of marriage and, if so eligible, becomes entitled to the spouse annuity upon the death of the retired Soldier. 6. By law, SBP passes by category not by name. Former spouse coverage under SBP may be voluntarily initiated by the Soldier or court-ordered. If court-ordered, the former spouse may request a former spouse coverage election be deemed to have been made. 7. 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. At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP. Spousal concurrence or notice was not required for a member to defer the SBP coverage decision until reaching retirement age. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. By law, an SBP beneficiary must be married for at least 1 year to be an eligible beneficiary. Regretfully, they were not married for one year prior to the FSM death. For that reason, the Board recommended denying the applicant’s request. 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. . By law, a spouse becomes an eligible spouse beneficiary under SBP upon the one year anniversary of marriage and, if so eligible, becomes entitled to the spouse annuity upon the death of the retired Soldier. 2. By law, SBP passes by category not by name. Former spouse coverage under SBP may be voluntarily initiated by the Soldier or court-ordered. If court-ordered, the former spouse may request a former spouse coverage election be deemed to have been made. 3. Title 10, USC, section 1448, establishes the SBP. It essentially states, in pertinent part, that eligible participants include 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. A standard annuity participant is a person who is entitled to retired pay and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence) not to participate in the Plan before the first day for which he is eligible for that pay. 4. 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. At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP. Spousal concurrence or notice was not required for a member to defer the SBP coverage decision until reaching retirement age. 5. Army Regulation135-180 (Qualifying Service for Retired Pay Non-regular Service) implements statutory authorities governing the granting of “retired pay” to Soldiers and former Reserve components Soldiers. It explains that retired pay is pay granted Soldiers and former Reserve components soldiers who have completed 20 or more years of qualifying service and have attained age 60. Orders will be issued announcing the effective date eligible persons are entitled to retired pay. Chapter 3 describes the RCSBP (Reserve Component SBP). It clearly states that members who received their 20-year letter prior to 1 January 2001, such as in this case, have 90 days to elect to participate in the RCSBP and return the DD Form 1883. Should they fail to do so, the member may subsequently elect coverage under the SBP with his or her application for retired pay upon reaching age 60. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170007081 2 1