IN THE CASE OF:
BOARD DATE: 12 June 2008
DOCKET NUMBER: AR20080002796
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, as the widow of a deceased former service member (FSM), requests correction of the FSMs records to show he enrolled in the Survivor Benefit Plan (SBP) for spouse coverage.
2. The applicant states that she does not recall declining SBP upon her husbands retirement in 1973. She states that service records are required for her personal records.
3. The applicant provides a copy of the FSMs retirement orders; a portion of a Department of Veterans Affairs Rating Decision, dated 20 June 2006; the FSMs and the applicants marriage certificate; and the FSMs death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM married the applicant on 21 April 1952. He was inducted in the Army of the United States on 12 December 1952.
2. The FSM completed a DD Form 1883 (SBP Election Certificate) on 17 July 1973 and elected to decline participation in the SBP. On 18 July 1973, the applicant signed a statement on the back page of the DD Form 1883 which stated, I the spouse of SSG _______ _ _____, have been fully informed and counseled concerning the options available under the Survivor Benefit Plan, for a survivor annuity. I understand the decision which has been made by my spouse concerning the decision of a survivor annuity.
3. The FSM continued to serve on active duty until he retired from the Regular Army on 1 August 1973.
4. The FSM died on 13 December 2005. The death certificate shows he was married to the applicant at the time of his death.
5. Information obtained from the Defense Finance and Accounting Service (DFAS) in Cleveland, Ohio on 16 May 2008, revealed that the FSM did not apply for SBP.
6. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
7. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than maximum spouse coverage. Neither spousal concurrence or notification is required when a member fails to enroll in the SBP during an open season.
DISCUSSION AND CONCLUSIONS:
1. The FSM retired on 1 August 1973. He was married to the applicant at that time; however, he elected not to participate in the SBP and the applicant concurred in his decision.
2. There is no evidence to show the FSM attempted to enroll in the SBP during an Open Season. There is no evidence of record which shows the FSM ever enrolled in the SBP.
3. Regrettably, in view of the foregoing there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
xxxxxxxxxx_____
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) AR20080002796
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ABCMR Record of Proceedings (cont) AR20080002796
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