IN THE CASE OF: 
 
  BOARD DATE: 5 September 2023 
 
  DOCKET NUMBER: AR20230003437 
 
 
APPLICANT REQUESTS: correction of her late husband's records to show he elected her as his Survivor Benefit Plan (SBP) annuitant within 1 year of their marriage. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) 

• Important Information Concerning Your Retired Pay Application, undated 

• Postnuptial Agreement (Partial), 5 May 1985 

• National Guard Bureau Form 22 (Report of Separation and Record of Service) effective 1 April 1987 

• County Court of Common Pleas Divorce Action – Postnuptial Agreement, 3 February 1999 

• DD Form 2656 (Data for Payment of Retired Personnel), 29 March 2003 

• U.S. Army Reserve Personnel Command, Orders P05-384487, 21 May 2003 

• DD Form 108 (Application for Retired Pay Benefits), 16 July 2003 

• Certificate of Death, 24 October 2019 

• County Court of Common Pleas – Marriage License Certification and Excerpts from Marriage Record, 1 November 2019 

• Defense Finance and Accounting Service (DFAS) Retired and Annuity Pay Letter, 26 November 2019 

• DFAS-Cleveland Form 1059 (Direct Deposit Authorization), 9 August 2021 

• DFAS U.S. Military Annuitant Pay Letter, 2 December 2022 

• DD Form 2656-7 (Verification for Survivor Annuity), 19 December 2022 


 
FACTS: 
 
1.  The applicant, the surviving spouse of the retired deceased service member (SM), states the DD Form 2656, 29 March 2003, should be considered a recording of the deceased SM's wishes whether or not it was submitted 1 year from date of marriage. She is entitled to the Reserve Component SBP (RCSBP) compensation. 
 
2.  The partial Postnuptial Agreement, 5 May 1985, between the SM and his then-wife, C____ M. L____, shows they entered into a postnuptial agreement. Paragraph 13 (Estates) states: 
 
Each party hereby releases and relinquishes any and all rights that he or she may now have or may hereafter acquire as spouse under the present or future laws of any jurisdiction to (a) share in the estate of the other party upon the latter's death and (b) act as executor or administrator of the other party's estate. This provision is intended to constitute a mutual waiver by the parties to take against each other's Wills under the present or further laws of any jurisdiction whatsoever. 
 
3.  The National Guard Bureau memorandum (Notification of Eligibility for Retired Pay at Age 60), 7 April 1986, notified the SM that, having completed the required years of service, he was eligible for retired pay upon application at age 60. The attached SBP Summary is not available for review. 
 
4.  On 15 June 1986 and 15 December 1986, the SM submitted two DD Forms 1883. The SM indicated he was not married, but had two dependent children. He elected "Child(ren) Only" coverage at the full amount of retired pay. The SM and a witness signed and dated the forms. 
 
5.  On 1 April 1987, the SM was discharged from the Pennsylvania Army National Guard for failure in the weight control program and transferred to the U.S. Army Reserve Control Group (Reinforcement). 
 
6.  U.S. Army Reserve Personnel Center Orders D-01-003936, 9 January 1990, discharged the SM from the Ready Reserve effective 12 December 1989. 
 
7.  The partial County Court of Common Pleas Divorce Action – Postnuptial Agreement, 3 February 1999, between the SM and his then-wife, M____ B. L____, shows they entered into a postnuptial agreement. Paragraph 6 (Pension, Retirement, and 401K Plans) states: 
 
 a.  The SM had the following pension/retirement and profit sharing plans: 
 
• retirement points with the U.S. Army Reserve Personnel Command 

• State Employee's Retirement System 

• profit-sharing plan with the Airport Authority 


 
 b.  His then-wife, M____ B. L____, waived and relinquished all rights to the SM's retirement points with U.S. Army Reserve Personnel Command and his State 
Employee's Retirement System. She was entitled to $30,000 plus interest of his Airport Authority profit-sharing plan. 
 
8.  On 29 March 2003, the SM submitted a DD Form 2656 wherein he indicated he was married to the applicant, R____ L____, with a marriage date of 31 July 1999 and they had no dependent children. The SM elected SBP coverage for "Spouse Only" based on full gross pay. The SM and a witness signed and dated the form. 
 
9.  The U.S. Army Reserve Personnel Command letter, 21 May 2003, informed the SM that his application for retired pay was approved. 
 
10.  U.S. Army Reserve Personnel Command Orders P05-384487, 21 May 2003, retired the SM and placed him on the Retired List effective 16 July 2001. 
 
11.  On 24 October 2019, the retired SM died. The death certificate shows he was married to the applicant at the time of his death. 
 
12.  The County Court of Common Pleas Marriage License Certification and Excerpts from Marriage Record, 1 November 2019, shows the SM married the applicant, R____ T____, on 31 July 1999. 
 
13.  The DFAS U.S. Military Annuitant Pay letter, 2 December 2022, denied the applicant's claim to an annuity under the SBP. Upon receipt of his 20-year letter, the SM was not married, but he did have dependent children. He made an RCSBP election for "Child(ren) Only" coverage. Since the SM made an RCSBP election, he had to elect spouse coverage within 1 year of the date of his subsequent marriage. He did not make an election within 1 year of the date of their marriage. 
 
14.  On 19 December 2022, the applicant submitted a DD Form 2656-7 to claim the SBP annuity as the surviving spouse of the retired deceased SM. She stated they were married on 31 July 1999 and had no dependent children. 
 
15.  The Defense Retiree and Annuitant Pay System shows an Administrative Report from the Defense Office of Hearing and Appeals, 17 March 2023, considered the applicant's appeal of DFAS' denial of her claim for entitlement to an SBP annuity. The report further shows the SM elected "Child(ren) Only" SBP coverage upon becoming eligible to participate in the RCSBP because he did not have a spouse. The SM and the applicant married on 31 July 1999. The SM became eligible for retired pay on 16 July 2001, his 60th birthday. The SM completed a DD Form 2656 on 29 March 2003 and elected "Spouse Only" SBP coverage for the applicant. The SM failed to notify the U.S. Army Human Resources Command of his marriage to the applicant within 1 year of the marriage; therefore, the applicant is not entitled to an annuity. 
 
BOARD DISCUSSION: 
 
After reviewing the application, all supporting documents, and the evidence found within the SM's military records, the Board found that relief was not warranted. The applicant's contentions, the SM's military records, and regulatory guidance were carefully considered. 
 
 a.  The evidence shows upon receipt of his 20-year letter in 1986, the SM was not married, but he did have dependent children. He made an RCSBP election for "Child(ren) Only" coverage. He and the applicant were married on 31 July 1999. He then retired on 16 July 2001. The Board found no evidence he submitted a request to change his election to spouse within 1 year of their marriage. It wasn’t until 29 March 2003 (over a year from the date of marriage), when the SM submitted a DD Form 2656 and indicated he was married to the applicant (Rox___) with a marriage date of 31 July 1999 and they had no dependent children. The SM elected SBP coverage for "Spouse Only" based on full gross pay.  
 
 b.  The SM died on 19 October 2019. The death certificate shows he was married to the applicant at the time of his death. On 2 December 2022, DFAS denied the applicant's claim to an SBP annuity. DFAS stated upon receipt of his 20-year letter, the SM was not married, but he did have dependent children. He made an RCSBP election for "Child(ren) Only" coverage. Since the SM made an RCSBP election, he had to elect spouse coverage within 1 year of the date of his subsequent marriage. He did not make an election within 1 year of the date of their marriage. 
 
 c.  In March 2023, DOHA informed the applicant that they considered her appeal of DFAS' denial of her claim for entitlement to an SBP annuity. The SM elected "Child(ren) Only" SBP coverage upon becoming eligible to participate in the RCSBP because he did not have a spouse. The SM and the applicant married on 31 July 1999. The SM became eligible for retired pay on 16 July 2001, his 60th birthday. The SM completed a DD Form 2656 on 29 March 2003 and elected "Spouse Only" SBP coverage for the applicant. The SM failed to notify the U.S. Army Human Resources Command of his marriage to the applicant within 1 year of the marriage; therefore, the applicant is not entitled to an annuity. 
 
 d.  The Board found relief is not warranted for two reasons: First, the law stipulates that in order for his spouse to become an eligible SBP beneficiary, the SM had had to submit his SBP election within 1 year of their marriage. The evidence shows he did not do so. Second, there was no intent by the SM to provide SBP coverage for the applicant, from the available evidence, it does not appear spouse SBP premiums were ever deducted from the retired service member’s retired pay and if relief is granted, any backdated premiums owed would be deducted from any annuity paid the applicant. 
 
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
xx: xx: xx: 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. 
 
  9/5/2023

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, the SBP, enacted 21 September 1972, 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. 
 
2.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who qualified for Reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation, (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, and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. Once a member elects either option B or 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. Members cannot cancel SBP participation or change options they had in the RCSBP. RCSBP coverage automatically converts to SBP coverage upon retirement. 
 
3.  Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and has no dependent child(ren) upon becoming eligible to participate in the SBP, but who later marries or acquires a dependent child, may elect to participate in the SBP. 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. 
 
//NOTHING FOLLOWS//