IN THE CASE OF: BOARD DATE: 6 September 2023 DOCKET NUMBER: AR20220011988 APPLICANT REQUESTS: in effect, payment of the Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Marriage Certificate, * FSM’s Death Certificate, FACTS: 1. The applicant states her husband retired in 1983. He was single. He was medically retired. They married in 1993 and they thought they had all our benefits in order. She is now only finding out that they could have had the Survivor Benefit Plan. She learned that there were no Survivor Benefit Plan briefings or counseling statements at that time that would have prepared them for everything they had to do to have Survivor Benefits. Had her husband and she known then that they had one year to enroll, they would have done it the week after they were married. She does not even have social security for herself at this time and she does not know what income she might qualify for. 2. The former service member’s (FSM) military records are not available for review. An exhaustive search was conducted to locate his records, but they could not be found. This case is processed based on a limited number of service records. 3. The FSM was born on. 4. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 8 April 1980, and he was retired on 14 February 1983 due to physical disability. He held the rank/grade of sergeant/E-5. He completed 2 years, 10 months, and 7 days of active service and he had 2 years, 10 months, and 13 days of prior active service. 5. The Defense Finance and Accounting Service provided an email regarding his SBP election as well as a DA Form 4240 (Data for Payment of Retired Personnel) as follows: a. The email states “At retirement member did not have beneficiaries, when member had beneficiaries starting in 1987, he never notified DFAS to add Spouse & child to SBP. Requested document attached.” b. DA Form 4240 (Data for Payment of Retired Personnel) dated 2 December 1982 wherein he stated he was single and had no dependents. He elected to decline SBP coverage. 6. The applicant provides a marriage certificate that shows she and the FSM were married on 30 September 1993. 7. There is no indication the FSM requested SBP coverage for his spouse within 1 year of their marriage. Likewise, there is no evidence he paid monthly SBP premiums between the date of marriage and the date of death. 8. The applicant provides the FSMs death certificate. It shows he died on 19 August 2022. He was married at the time of death and the applicant is listed as the informant. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on public law, policy and regulation. Upon review of the applicant’s petition and the former service member’s available military records, the Board determined the former service member (FSM) was not married and did not receive any SBP briefing or counseling statements during his medical retirement in 1983. Furthermore, the Board agreed that an injustice has occurred, and recommends that the FSM’s records be corrected to reflect that show the deceased retiree elected into SBP within one year of their marriage. The Board recommend presumably premiums would be deducted from any payments made. Therefore, the Board granted relief. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show the deceased retiree elected into SBP within one year of their marriage. Presumably premiums would be deducted from any payments made. 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 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 very specific circumstances. The election must be made before the effective date of retirement. Since its creation, it has been subjected to several substantial legislative changes. 2. Title 10, U.S. Code, section 1448(a)(5) (Participation by Person Marrying after Retirement, etc.), provides that a person who is not married and who 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 1 year after the date on which that person marries or acquires that dependent child. 3. Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so. Extensive publicity was given in Army Echoes. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011988 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1