RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20070013961 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 the records of her deceased spouse, a former service member (FSM), be changed to reflect that he elected to participate in the Survivor Benefit Plan (SBP). 

2.  The applicant states, in effect, that the FSM told her she would be okay after he passed because she would have his retirement to help her in her old age.  However, she has been denied his retirement check.  Her life has been a constant struggle since the FSM's death and now at 74, she has developed health problems and does not know how much longer she can work.  She lost her home and car due to bankruptcy caused by ill health.  The Handbook on Retirement Services for Army Personnel (Department of the Army Pamphlet 600-5), page 22-2, clearly states that "Under the law, if a retired member with a spouse or eligible child on the date of retirement has not submitted a signed declination or elected reduced coverage, he or she will be automatically enrolled for full coverage (such coverage is irrevocable:  Title 10, U.S. Code 1448)."   

3.  The applicant provides a copy of her marriage certificate; a copy of the FSM's death certificate; and a copy of her application for and denial of Dependency and Indemnity Compensation (DIC) to the Department of Veterans Affairs (DVA).

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 applicant and the FSM married on 6 June 1956.

3.  The FSM's military records show that he retired from the Regular Army on
30 November 1971 in the rank and grade of sergeant first class (SFC)/E-7.  He chose not to make an election of options under the Retired Servicemen's Family Protection Plan (RSFPP).  
4.  The FSM died on 5 July 1987.  There is no evidence showing that RSFPP costs had been deducted from his retired pay until the date of his death.

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.  Unless option 4 was elected along with either option 1 (annuity payable to or on behalf of widow), option 2 (annuity payable to or on behalf of surviving child or children), or option 3 (annuity payable to or on behalf of widow and surviving child or children), premiums continued to be paid after the death of the beneficiary.

6.  Public Law 87-381, enacted 4 October 1961, changed the USCOA to the RSFPP.  The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA.  

7.  The RSFPP also covered only persons dependent on the member at the time of his retirement.  The provisions of the former option 4 were made automatic with the enactment of Public Law 90-485 on 13 August 1968 for members retired on or after 13 August 1968.  At this time but before 1 September 1969, a retired member who was participating in the RSFPP without inclusion of the former option 4 could have elected to have that option included in his election.  The retired member must have agreed to pay both the total additional amount to cover the option had it been effective when he retired plus the interest which would have accrued on the additional amount up to the effective date of the new option 4.

8.  Public Law 990-485, enacted 13 August 1968, provided that an RSFPP election had to be made before the member completed 19 years of service.  Option 4 was automatic if the member retired on or after 13 August 1968.  Children remained eligible until age 23 if unmarried and full-time students.

9.  Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and 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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.

10.  Public Law 93-155, enacted 16 November 1973, extended that Open Season from 12 to 18 months (21 September 1972 – 20 March 1974).


11.  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 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  Extensive publicity of this Open Season was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.

12.  Public Law 98-94, enacted 24 September 1983, established an Open Season from 23 September 1983 through 24 September 1984.  Extensive publicity was given in Army Echoes.

DISCUSSION AND CONCLUSIONS:

1.  The FSM retired on 30 November 1971 and did not elect to participate in the RSFPP.  No RSFPP costs were deducted from his retirement pay.

2.  The SBP was established on 21 September 1972.  There were 3 Open Seasons announced prior to the FSM's death and he did not enroll his spouse in the SBP during the 3 available Open Seasons.  The new law and the Open Seasons were given extensive publicity.  Regrettably, the FSM had several opportunities to enroll his spouse in the SBP program, but he did not do so, nor did he ever make SBP premium payments.  Unfortunately, the FSM initially elected not to participate in the RSFPP, he did not enroll in the SBP, and there is no automatic entitlement to an SBP annuity when the servicemember has not made any premium payments into the program for future coverage of his or her spouse.

3.  The provision of the SBP law quoted by the applicant does not apply in her case because the SBP did not become law and go into effect until September 1972.  The FSM retired in November 1971.  The retiree's SBP election must be made before his or her retirement date, but this was impossible in the FSM's case because SBP did not yet exist at his retirement date.  Accordingly, the only way the FSM could enroll in the SBP was through the Open Season.  Again, there is no evidence he did this.

4.  Given the above, there is no basis upon which to grant the applicant's request.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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


ABCMR Record of Proceedings (cont)                                         AR20070013961



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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