IN THE CASE OF: BOARD DATE: 9 December 2008 DOCKET NUMBER: AR20080014581 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse only coverage. 2. The applicant states, in effect, that prior to her husband's death he assured her that upon his death she would receive the survivor benefit share of his pension. She contends that since his death in 1988 she has never received anything from his pension and that the Defense Finance and Accounting Service retirement section has no record of her husband ever having received an Army pension. 3. The applicant provides a DD Form 2656-7 (Verification or Survivor Annuity), dated 15 August 2008; a blank direct deposit slip; an identification card; a DD Form 214 (Report of Transfer or Discharge) for the period ending 31 August 1968; and a death certificate. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The FSM was born on 20 June 1925. Having prior service, he enlisted in the Regular Army on 9 January 1951 and remained on active duty through continuous reenlistments until he retired on 31 August 1968. He and the applicant were marred in October 1963. 3. The FSM's AGPZ Form 977 (Data for Retired Pay) indicated that a DA Form 1041 (Election of Options Under the RSFPP) was attached. The DA Form 1041 available indicates the FSM elected not to provide an annuity for his dependents. 4. The FSM died on 18 August 1988. 5. Public Law 83-239, enacted 8 August 1953, established the USCOA (Uniformed Services Contingency Option Act). It covered only persons dependent on the member at the time of his retirement. Annuity was 1/2, 1/4, or 1/8 of retired pay. 6. Public Law 87-381, enacted 4 October 1961, changed the USCOA to the Retired Serviceman's Family Protection Plan (RSFPP). The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA. The RSFPP also covered only persons dependent on the member at the time of his retirement. 7. Public Law 92-425, the SBP, enacted 21 September 1972, repealed the RSFPP and established the SBP. The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Upon creation of the SBP, an 18-month Open Season was conducted from 21 September 1972 to 20 March 1971, in which all pre-1972 retirees were given the option to enroll. The Department of the Army contacted all previously retired service members and explained to them the benefits and procedures provided by the SBP. This was done on several occasions. First, a bulletin was sent out describing SBP. The bulletin was followed by a circular and would extend the benefits of SBP to those already retired. A final notice provided a box to check on a postal card indicating the retiree’s intention. 8. Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible an annuity. DISCUSSION AND CONCLUSIONS: 1. The applicant stated that DFAS had no record the FSM received retired pay; however, she did not provide the evidence showing where DFAS made this assertion. It appears unlikely that the FSM would have failed to inquire about his retired pay during the 20 years between his retirement in 1968 and his death in 1988 if he had not been receiving it. 2. There is evidence to show the FSM had completed a DA Form 1041; however, that form indicated that the FSM elected not to participate in the USCOA/RSFPP. 3. Although the FSM retired in 1968, there is no evidence to show he enrolled in the SBP when it was established in 1972. Since there is no evidence of record which shows the FSM made an SBP election prior to his death, and evidence of record shows he had opportunities to enroll in the SBP during Open Seasons, there is no basis for granting the applicant's request. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____XXX__ _ _______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20080014581 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080014581 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1