IN THE CASE OF:
BOARD DATE: 14 August 2008
DOCKET NUMBER: AR20080010602
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 that she be given benefits under the Survivor Benefit Plan (SBP).
2. The applicant states that her husband, the Former Service Member (FSM), assured her that when he passed away she would be taken care of. She believes she is entitled to SBP benefits from the date of his death on 2 July 1975.
3. The applicant provides her marriage certificate, her husbands death certificate, and four of her husbands DD Forms 214.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSMs military records could not be located. The following information was derived from documents provided by the applicant herself.
3. The FSM was inducted on 15 January 1953, enlisted in the Regular Army on 17 March 1953, was awarded the military occupational specialty of personnel specialist, and was promoted to master sergeant.
4. The FSM was honorably released from active duty on 31 July 1970 for years of service and placed on the Retired List the following day.
5. 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. It declared a 12-month Open Season for those members who retired prior to enactment of the law. The Open Season was later extended to 18 months. To retain annuity eligibility, a surviving spouse cannot remarry before age 55. If he or she remarries before age 55, eligibility may be regained if that remarriage is terminated by death, divorce or annulment.
6. In the processing of this case, the Boards staff contacted the Defense Finance and Accounting Service (DFAS) who stated that they have no documentation to show that the FSM elected SBP.
DISCUSSION AND CONCLUSIONS:
1. The FSM was placed on the Retired List over 2 years prior to the establishment of the SBP, and there is no evidence that he elected SBP during the 18-month open season after the establishment of the SBP.
2. As such, it must be presumed that the FSM did not elect SBP.
3. In view of the foregoing, there is no basis for granting the applicants request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X____ ___X___ 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.
_______ _ X _______ ___
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) AR20080010602
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ABCMR Record of Proceedings (cont) AR20080010602
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