RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 July 2007
      DOCKET NUMBER:  AR20060015824


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Ms. Susan A. Powers               |     |Member               |
|     |Mr. Edward E. Montgomery          |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that she receive Retired
Serviceman's Family Protection Plan (RSFPP) benefits based on the death of
her husband, a former service member (FSM).

2.  The applicant states, in effect, that the RSFPP benefit election of her
husband needs to be corrected so that she can receive her late husband's
military benefits.  She states that her husband served under the old system
(RSFPP) and it was never corrected prior to his death to allow her to
receive his military benefits.  She claims she was not aware that the RSFPP
system was no longer in use until she was advised of this by the Texas
Veterans Commission in 2006.

3.  The applicant provides the following documents in support of her
application:  Texas Veterans Commission Letter, dated 27 October 2006; FSM
Identification Cards; FSM Warrant Officer Appointment Certificate; FSM
Honorable Discharge Certificate; FSM Retired Reserve Certificate; FSM Death
Certificate; Marriage Certificate; and Defense Finance and Accounting
Service (DFAS) Retired/Annuitant Pay Statements for March 1994 and March
1995.

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he retired from the Army on 30 June 1967, in the
rank and pay grade of Chief Warrant Officer Three/W-3.  His record contains
a retirement request he submitted on 5 April 1967.  In this request, he
confirmed that he had accomplished an election of options under the
Uniformed Services Contingency Option Act of 1953, and that he did elect to
participate.

2.  The FSM's spouse at the time of his retirement died in 1977, and the
FSM married the applicant on 7 January 1985.

3.  The FSM died on 6 December 1995.  The applicant provides DFAS Retired
Pay Annuitant Pay statements from March 1994 and March 1995 that confirm
RSFPP costs of $30.37 were continued to be deducted from his retired pay
through 1995.

4.  During the processing of this case, a member of the Board staff
contacted a DFAS official to determine what information related to the
FSM's RSFPP and SBP enrollment remained on file at DFAS.  This official
indicated that the FSM's pay record was purged three years after his death
and he could not explain why RSFPP costs continued to be deducted from the
FSM's retired pay after the death of his first spouse in 1977.
5.  The Uniformed Services Contingency Option Act of 1953 (COA) provided
that a military member could elect to receive a reduced amount of retired
pay in order to insure that his survivors (widow and/or children) would
receive a portion of his retired pay upon his death in a retired status.

6.  Public Law 381, 87th Congress, enacted 4 October 1961, amended the COA
by changing its name to Retired Serviceman's Family Protection Plan
(RSFPP). It also made major changes concerning entitlement both to
annuities and to Dependency and Indemnity Compensation payments to families
of physical disability retirees.

7.  Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and
established the Survivor Benefit Plan (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.  It
declared a 12-month Open Season for those members who retired prior to
enactment of the law.  Public Law 93-155, enacted 16 November 1973,
extended that Open Season from 12 to
18 months (21 September 1972-20 March 1974).

8.  Public Law 97-35, enacted 12 August 1981, established the second Open
Season a 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 for an annuity.

9.  Public 101-189, enacted 29 November 1989, established an Open Season
from 1 October 1991 (deferred to 1 April 1992)-30 September 1992.  It
required that enrollees live two years from the effective date of election
for beneficiaries to be eligible for an annuity.  Public Law 101-510,
enacted 5 November 1990, delayed the start of the third Open Season to 1
April 1992-31 March 1993.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the FSM enrolled in the RSFPP in
conjunction with his retirement on 30 June 1967, and that premiums
continued to be collected from his retired pay through the date of his
death in 1995, more than 18 years after his first spouse died in 1977.

2.  It is possible that at the time of his retirement processing, the FSM
was made aware that only the individual who was his spouse on his
retirement date was an eligible beneficiary under the RSFPP.  However, the
FSM may not have remembered this requirement 10 years later when his first
spouse died and/or 18 years later when he married the applicant.
3.  It is also reasonable to conclude that the FSM assumed the applicant
was his beneficiary for survivor benefits given RSFPP costs/premiums
continued to be collected from his retired pay through the date of his
death, which was some
18 years after the death of his first spouse and some 10 years after he
married the applicant.

4.  In view of the facts of this case, it would be appropriate and serve
the interest of justice and equity to correct the FSM's record to show he
elected to participate in the SBP, at full base amount, with spouse
coverage on 1 April 1992, the first date of the first Open Season after his
marriage to the applicant.  It would also be appropriate to provide the
applicant all SBP annuity pay due from the date of the FSM's death through
the present, minus all SBP costs due from 1 April 1992, the date of
enrollment, through the date of the FSM's death, 6 December 1995.

BOARD VOTE:

___KAN _  __SAP__  __EEM  _  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 by
showing the FSM elected to participate in the SBP, at full base amount,
with spouse coverage on 1 April 1992; and by providing the applicant all
SBP annuity pay due from the date of the FSM's death through the present,
minus all SBP costs due from 1 April 1992 through 6 December 1995.




                                  _____Kathleen A. Newman___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015824                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/07/10                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1967/06/30                              |
|DISCHARGE AUTHORITY     |10 USC 3914                             |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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