IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230000348 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 * Death Certificate FACTS: 1. The applicant states her husband was sent a card about 15 years ago asking him to name a beneficiary for his retired pay in case of death. He filled out the form without her name and/or address and mailed it to the Army. They did not get it back, which means the Army received it. She feels frustrated and given a hard time, possibly due to her color. She is only asking for her late husband’s retired pay. 2. Review of the FSM’s service records shows: a. Having had prior service, the FSM reenlisted in the Regular Army on 20 August 1979. He served through reenlistments or extensions, in a variety of assignments, and he attained the rank of staff sergeant (SSG)/E-6. b. On 15 June 1989, an official at Headquarters, U.S. Army Signal School, Fort Gordon, GA sent a letter to the FSM’s spouse, . The letter informed her that her husband, the FSM, has requested retirement on 1 October 1989. The letter included an SBP Fact Sheet and explained the SBP, categories of coverage, and the options available. c. On 8 August 1989, in anticipation of his upcoming retirement, and after receiving SBP counseling, the FSM completed a DD Form 4140, Data for Payment of Retired Pay. He indicated he was married to and they have dependent children. He elected to decline SBP coverage. d. On 11 August 1989, in front of a witness, the FSM’s spouse, , indicated she has received information that explained the options available and the effects of those options. She indicated that she concurs with her husband’s election to decline SBP participation and indicated she has signed this statement of her own free will. e. The FSM retired on 30 September 1989, and he was placed in the retired list in his retire grade of SSG/E-6 on 1 October 1989 with 20 years and 27 days of active service. f. It is unclear how the FSM’s marriage to was ended/terminated. There is no divorce decree or death certificate provided. g. On, the FSM and _, the applicant, were married. h. There is no indication that the FSM was authorized and/or requested spouse SBP coverage with one year of his marriage to the applicant, or during any subsequent Open Season. i. The FSM died on. His death certificate shows he was married at the time of death and the applicant’s name as the informant. 3. An email, dated 26 April 2023, from the Retired and Annuity Pay Office at the Defense Finance and Accounting Service indicated that “Member elected not to participate in SBP at retirement. A valid request with spouse concurrence is on file.” BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's request, the former service members 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 applicants petition and available military records for the FSM, the Board determined there is insufficient evidence to show the FSM elected SBP enrollment for his currentl spouse within one year of his marriage to the applicant. The Board agreed the FSM record is absent any record the FSM submitted the appropriate form for enrollment of SBP coverage for his spouse (applicant). The burden of proof rest with the applicant however, she did not provide the stated card that the FSM received some 15 years ago and mailed back to DFAS. The Board noted, the FSM record has insufficient evidence to support his intent to enroll his spouse for SBP coverage. Based on the preponderance of evidence, the Board denied relief. 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 SBP. The SBP provided military members on active duty an opportunity to 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 also provides that every member having a spouse and/or child(ren), who retires/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 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage without the member's agreement in those cases where the retiree had elected spouse coverage at retirement or was still serving on active duty and had not yet made an SBP election. 3. Title 10, U.S. Code, section 1448 states in: a. Paragraph a(3), Elections.— (A) Spousal consent for certain elections respecting standard annuity.—A married person who is eligible to provide a standard annuity may not without the concurrence of the person’s spouse elect— (i) not to participate in the Plan; (ii) to provide an annuity for the person’s spouse at less than the maximum level; or (iii) to provide an annuity for a dependent child but not for the person’s spouse. b. Paragraph a(4) Irrevocability of elections.— (A)Standard annuity.— An election under paragraph (2)(A) is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. 3. Periodically, Congress authorizes an Open Season to allow retirees certain changes to their SBP participation or non-participation. The last Open Season was in 2005. Extensive publicity was given in Army Echoes. Army Echoes also warned that for a retiree with a high number of years since first being able to enroll a beneficiary in the SBP and whose retired pay was high, the enrollment premium alone could be substantial. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000348 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1