IN THE CASE OF:	  

		BOARD DATE:	        28 August 2008

		DOCKET NUMBER:  AR20080006083 


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 the records of her deceased husband, a former service member (FSM), be corrected to show he elected to enroll in the Survivor Benefit Plan (SBP), spouse coverage.  

2.  The applicant states that the FSM was dying of cancer when he retired for disability.  He had completed 20 years of honorable service and he was not given an opportunity to contribute to the SBP.  Additionally, she did not sign a waiver of her rights.

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  A self-authored letter, dated 10 March 2008.

	b.  The FSM's DD Form 214 (Report of Separation from Active Duty), dated 10 March 1976.

	c.  Letter Orders Number D3-41, dated 3 March 1976, placing the FSM on the Permanent Disability Retired List.

	d.  The FSM's Certificate of Death, dated 9 September 1976.

	e.  Applicant's letter, dated 18 September 2006, to a Member of Congress.

	f.  Member of Congress letters to the applicant, dated 8 November 2006 and 1 December 2006.

	g.  Department of Veteran's Affairs (DVA) letter, dated 22 November 2006, to the applicant's Member of Congress.

	h.  Applicant's letters, dated 18 September, and 13 October 2006, written to Members of Congress.

	i.  Applicant's letter, dated 7 September 2006, written to the Defense Finance and Accounting Service (DFAS).  

4.  On 20 August 2008, the applicant submitted a copy of her marriage license to the Board.

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's records show that he initially enlisted in the Regular Army on 26 February 1956 and was trained in military occupational specialty (MOS) 67Z (Aircraft Maintenance).  He subsequently executed a series of extensions and/or reenlistments in the Regular Army.  

3.  On 29 June 1957, the FSM and the applicant were married in Bainbridge, Georgia.

4.  On 11 February 1974, a PEB convened in San Francisco, California, and determined the FSM was physically unfit to perform his duties, due to carcinoma in the lung.  The PEB recommended that the FSM be permanently retired from the Army.

5.  On 3 March 1976, the FSM completed a DD Form 4240 (Data for Payment of Retired Army Personnel).  The FSM placed an "X" in item 9e (Survivor Benefit Plan-None) indication that he elected not to participate in the SBP.

6.  On 3 March 1976, U.S. Military Personnel Center, Alexandria, Virginia, published Letter Orders Number D3-41, placing the FSM on the Retired List, in the rank/grade of first sergeant (1SG)/E-8.

7.  On 9 September 1976, the FSM died.

8.  Item 10 (Marital Status) of the FSM's Death Certificate, dated 9 September 1976, shows he was married to the applicant at the time of death.

9.  In a letter, dated 22 November 2006, the applicant’s Member of Congress responded to her letter, dated 8 November 2006 by stating that the Director, DVA, Atlanta Regional Office, indicated that the applicant was currently receiving $1,165.00 per month in Dependency and Indemnity Compensation (DIC) from the VA.  The Director further referred the applicant to DFAS concerning the SBP. 

10.  In her self-authored letter, dated 10 March 2008, the applicant elaborated on the FSM's background, his experiences over the years and his service in the Republic of Vietnam.  She also elaborated on the difficulties of military life and raising the family, and the FSM's unfortunate death.  She stated that, after receiving the DVA letter, she wrote a letter to DFAS regarding the SBP and that DFAS officials notified her that there is no record of the FSM paying into the SBP.  She further adds that she was not given the opportunity to sign a waiver giving up her rights under the SBP; that no one contacted her regarding SBP benefits; and that if the FSM had made only one payment prior to his death, she would have been eligible for SBP benefits.  She concludes that there must be some provisions in the law that deal with a situation similar to hers; that it was through no fault of the FSM that he did not have the opportunity to contribute to the SBP; and that she did not sign a waiver opting out of this benefit as required when a service member makes an election not to contribute to the SBP for his widow.

11.  Public Law 92-425, enacted 21 September 1972, 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. An election, once made, was irrevocable except in certain circumstances.  This Law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.
12.  Public Law 92-425, 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.  This law also provides that if an active duty service member dies after becoming eligible for military retired pay, but before its award, or while on active duty after retirement, an annuity is payable to the eligible spouse in an amount equal to the difference between any Dependency Indemnity Compensation (DIC), payable by the Veterans Administration (now known as the Department of Veterans Affairs or DVA) and 55 percent of what military pay would have been on date of death.

13.  Public Law 98-525 (the pertinent portion of which is also known as the Thurmond amendment), enacted 19 October 1984, eliminated or reduced the Social Security Offset for surviving spouses entitled to Social Security in their own right. It was repealed before it took effect by Public Law 99-145.

14.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage.  This law also repealed the Thurmond amendment and permitted members who retired between 19 October 1984 and 8 November 1985 to withdraw from the SBP with a refund of premiums.  The implementing guidance associated with this law directed that “if any member withdraws from participation for a spouse or spouse and child, that member’s spouse will be notified in the same manner, appropriately documented, as if the member had elected not to participate in the Plan upon retirement.” Since in the 1984 – 1985 time frame concurrence was not required for retiring members, it would not apply to already retired members.

15.  10 U.S. Code, section 1448, in effect at the time, required notice to a spouse if a member elected to participate in the SBP.  The statue also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay.  10 USC, section 1448 was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount.  

16.  On its face, the notice requirements formerly in place under 10 USC, section 1448 would appear to be satisfied if the Army made an attempt to inform the applicant of the FSM's election to decline the SBP.  However, a long history of Federal Court decisions interpreting the intent of Congress in enacting the SBP provide that actual notice to and counseling of the spouse must have occurred and be documented for a member's declination to be effective.  Court cases concluded that Congress included the notice and automatic enrollment provisions into the SBP statute to avoid having a surviving spouse learn for the first time upon the member's death that the member provided no survivor benefits.  Where Army officials failed to provide actual notice and counseling, as the case in hand, the member's election to decline participation in the SBP becomes void.  The net effect is that the record is treated as if the member never made an SBP election.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she is entitled to receive SBP benefits based on the death of her husband, a FSM, was carefully considered.  It appears that there is sufficient evidence to support this claim.

2.  The evidence of record shows that prior to his retirement for disability, the FSM was provided an opportunity to make an SBP election and that he willingly and in writing, elected not to participate in the SBP.  At the time of this election, there was no legal requirement for the spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage.  

3.  Nevertheless, there is no evidence in the records that shows the applicant received actual notice of the FSM's decision to decline the SBP.  The record is, therefore, treated as if the member never made an SBP election and the applicant becomes, by law, entitled to the SBP.  Accordingly, the applicant's records should be corrected to show that the FSM failed to make an SBP election and was therefore automatically enrolled in the SBP for spouse coverage at the full base amount.

4.  Although the applicant is entitled to correction of the FSM's records, she may not receive any real relief.  The applicant indicated that she received DIC from the VA.  By law, a spouse receiving DIC may only receive that portion of an SBP annuity that exceeds the DIC compensation.  

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 failed to make an SBP election prior to retirement and was therefore automatically enrolled in the SBP "spouse coverage, full amount"; 

	b.  that the applicant be paid the SBP annuity as a result of the above correction and after coordination between DFAS and the VA in determining the actual amount of SBP annuity, if any, payable to the applicant, from the date of the FSM's death.   


															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)                                         AR20080006083



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080006083



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1