IN THE CASE OF:	  

		BOARD DATE:	         26 August 2008

		DOCKET NUMBER:  AR20080005890 


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 husband, a former service member (FSM), be corrected to show her entitlement to Survivor Benefit Plan (SBP) benefits.

2.  The applicant states the FSM fully intended to provide for her well-being in the event of his demise.  She adds there is no record of her waiving her SBP benefits, nor did the FSM ask her to waive SBP benefits.

3.  The applicant provides:

	a.  A copy of the reverse side of DA Form 4240 (Data for Payment of Retired Army Personnel).  This form is dated 30 May 1992, but is unsigned.

	b.  A copy of a Certification of Marriage issued by the Commonwealth of Puerto Rico showing the applicant and the FSM were married on 6 December 1958.  The applicant's date of birth is shown as 3 December 1937.

	c.  A copy of a Certification of Death issued by the Commonwealth of Puerto Rico showing the FSM died on 13 October 1999, at age 67, from a brain tumor.  The applicant is listed as the spouse on this 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 12 April 1932 and served in the US Army Reserve (USAR) from 16 March 1953 through 26 December 1993.  He received his notification of eligibility for retired pay at age 60 (20-Year Letter) on 6 September 1983.

3.  The FSM applied for non-regular retired pay in 1992.  The Defense Finance and Accounting Service (DFAS) provided a copy of the reverse side of the FSM's DA Form 4240.  This form, signed in Item 19 and dated 30 May 1992, shows the FSM elected, in Item 16, full SBP coverage; however, it shows he did not make an election in Item 15 indicating the type of coverage he desired – spouse only, spouse and dependent children, etc..

4.  The FSM died on 13 October 1999 from brain cancer.  The applicant, who had married the FSM on 6 December 1958 was still married to him at the time of his death.

5.  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.  The surviving spouse and dependent children of a member who dies on active duty after becoming eligible to receive retired pay are automatically entitled to an SBP annuity.

6.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had 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; (c)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.

7.  Section 1448, Title 10, U. S. Code provides that if a person makes an election not to participate in the RCSBP, the person’s spouse shall be notified of that election.  Spousal concurrence is needed only when a married person elects to provide an annuity for his spouse at less than the maximum level or to provide an annuity for a dependent child but not for his/her spouse.

DISCUSSION AND CONCLUSIONS:

1.  The FSM, upon reaching age 60 and making application for non-regular retired pay, completed DA Form 4240 indicating that he desired full SBP coverage.  He listed the applicant as his spouse, but he inserted their date of marriage as the applicant's birth date in Item 17c.  He also listed a daughter born on 4 January 1973 as a dependent child – the daughter would have been 19 at the time of the FSM's application for non-regular retired pay.  The FSM signed the DA Form 4240 in Item 19 and dated it 30 May 1992.  The FSM did not sign in Part VII (Survivor Benefit Plan Certificates), Item 23, nor did the applicant sign in Item 24.

2.  The applicant married the FSM in 1958 and has proven that she is legally the widow of the FSM who died in 1999.  At the time of his death, the FSM was 67 years of age and the applicant was 61 years of age.

3.  In effect, the SPB election made by the FSM was invalid and therefore should have resulted in a default to automatic coverage, full SBP.  This apparently did not happen; however, in view of the circumstances in this case, and in the interest of justice and equity, it would be appropriate to process the FSM's DA Form 4240 as if it had been properly completed to provide for spouse only, full SBP coverage.

BOARD VOTE:

__xxx___  __xxx___  __xxx___  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:

	a.  showing that the FSM properly completed and timely filed DA Form 4240 electing to provide for spouse only, full SBP coverage at the time he applied for non-regular retired pay; and

	b.  paying to the applicant all SBP payments due from the date of the FSM's death on 13 October 1999, subject to collection of all premiums.



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      _______ _   _______   ___
               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)                                         AR20080005890



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ABCMR Record of Proceedings (cont)                                         AR20080005890



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