IN THE CASE OF:	  

		BOARD DATE:		  18 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080012267


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, the widow of a deceased former service member (FSM), requests, in effect, enrollment and participation in the Retired Serviceman’s Family Protection Plan (RSFPP) and Survivor Benefit Plan (SBP).

2.  The applicant states that the deceased FSM’s records were destroyed confirming his participation in the RSFPP and SBP.  She states that she and the FSM chose not to divorce, they had 3 children together, she never declined her marital interest in the FSM’s Army earnings and retirement, the FSM did not have a will, and the FSM never excluded her from PX and Army medical benefits.

3.  The applicant provides copies of Department of Veterans Affairs correspondence dated 2 January 2008 with a VA Form 4107 (Your Rights to Appeal Our Decision), Department of Veterans Affairs correspondence dated 22 January 2008, Department of Veterans Affairs correspondence addressed to the applicant’s Senate representative dated 28 January 2008, U.S. Senate correspondence dated 28 January 2008, Defense Finance and Accounting Service (DFAS) correspondence addressed to the applicant’s counsel dated 7 February 2008, and correspondence addressed to the Department of Veterans Affairs from the applicant dated 14 February 2008 with VA Form 21-4185 (Report of Income from Property or Business) dated 14 February 2008 in support of this application.


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel directs that the Army Review Boards Agency correct the FSM’s Army survivor benefit records and instructs the Army Review Boards Agency to pay the applicant the survivor’s benefits to which she is entitled under Federal law from their 26-year marriage.

2.  Counsel states that the documents requested by the Army Review Boards Agency have been in the Federal government’s possession for nearly 2 years after submission by the applicant in support of her claim for survivor’s benefits from the U.S. Army and the Department of Veterans Affairs.  Counsel also states that the applicant and FSM had 3 children together who are now adults; that the applicant and FSM never divorced, although they were separated at the time of his death because of his philandering; and neither attempted to terminate their marriage of 26 years.  Counsel continues to state that the FSM never renounced survivor benefits to the applicant, that the applicant is now legally blind at age 65, that her only source of income is her small monthly Social Security allotment, and that she is now homeless because of the failure of the Department of the Army and the Department of Veterans Affairs to abide by congressionally-mandated benefits.

3.  Counsel provides copies of the FSM’s marriage license and certificate of death, as well as copies of correspondence addressed to the applicant’s Senate representatives, the Secretary of Defense, the DFAS, the U.S. Army Finance and Accounting Center, the Department of Veterans Affairs, and correspondence addressed to the applicant from the Army Review Boards Agency Support Division and the Department of Veterans Affairs in support of this application.

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 military service records show that he enlisted in the Army National Guard on 6 March 1940 entered active duty on 3 February 1941.  He completed basic training and advanced individual training and was awarded the military occupational specialty 861 (Surgical Technician).

3.  The FSM's War Department Adjutant General Office (WD AGO) Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) shows that he was honorably separated from active duty by reason of demobilization on 3 August 1945.

4.  The FSM’s military service records show that he enlisted in the Regular Army on 15 March 1948 following a break in service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was honorably discharged upon the expiration of his term of service on 14 March 1957.

5.  The FSM’s military service records show that he enlisted in the Regular Army on 26 March 1957 following another break in service.

6.  A barely legible State of South Carolina Marriage License shows that the applicant and the FSM were issued a marriage license on what appears to be 16 January 1962.

7.  DD Form 1172 (Application for Uniformed Services Identification and Privilege Card) dated 13 April 1966 shows that the FSM listed the applicant as his legal dependent by reason of marriage effective 8 August 1961 and designated her to act as his agent for commissary purchases.  The applicant acknowledged receipt of her identification card on 24 April 1966.

8.  DD Form 1407 (Dependent Medical Care and DD Form 1173 Statement) dated 28 November 1967 prepared by the FSM in connection with his retirement states that he does not have a dependent receiving medical care in a uniformed services medical facility or civilian care under the Medicare program and that he understands that after 2400 hours on the effective date of his retirement his dependents will not be eligible for civilian medical care under the Medicare program.

9.  There is no evidence that the FSM elected to participate in the RSFPP in connection with his retirement.

10.  The FSM’s DD Form 214 (Report of Separation from the Armed Forces of the United States) shows that he was honorably discharged for retirement on 30 November 1967 and transferred to the U.S. Army Reserve Control Group (Retired).  The FSM’s combined discharge documents for the period ending 30 November 1967 show that he served a total of 24 years, 2 months, and 3 days of total creditable active military service.

11.  Commonwealth of Virginia Certificate of Death shows that the FSM died on 27 June 1988.  The FSM was 66 years of age at the time of his death.  This certificate also shows that the FSM was married to the applicant at the time of his death.

12.  DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) dated 14 February 2008 shows that the applicant’s surname is not that of the FSM.

13.  DFAS correspondence dated 7 February 2008 informs the applicant’s counsel that DFAS records indicate that the FSM did not elect to participate in the RSFPP or SBP.  This correspondence also informed the applicant’s counsel that, as a result, the applicant was not entitled to an annuity from the FSM’s retired pay account.

14.  The Uniformed Services Contingency Option Act (USCOA) of 1953 was the first law to permit military members to receive reduced retired pay during their lifetime in return for ensuring that their widows and eligible children would receive an annuity after their death.  Public Law 87-381 of 1961, replaced the provisions of the USCOA with the RSFPP.

15.  Public Law 92-425, enacted 21 September 1972, terminated the RSFPP and created the SBP.  Under SBP, each member entitled to retired or retainer pay with eligible dependents is entitled to participate in the program.  Under the SBP program, retired members are required to pay monthly premiums in the form of a deduction from their retired pay.  In general, these premiums will be deducted throughout a member’s lifetime unless the retiree terminates or withdraws from annuity coverage, or during any period in which the member does not have an eligible beneficiary.  Members who retired prior to 21 September 1972 had until 20 March 1974 to elect to participate in the SBP.  Spousal concurrence was not required before declining coverage for members who retired prior to 21 September 1972.  Further, members who retired prior to 21 September 1972 were not required to complete an election in order to decline coverage under the SBP.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for enrollment and participation in the RSFPP and SBP was carefully and thoroughly considered and determined to be without merit.

2.  The applicant states that the deceased FSM’s records confirming his participation in the RSFPP and SBP were destroyed.  However, the FSM’s complete military service personnel and health records were available for review and there is no evidence that he elected enrollment in the RSFPP or SBP or that any individual documents were destroyed.

3.  The applicant states that she and the FSM never divorced; however, her surname as entered on the DD Form 149 is not that of the FSM.

4.  The FSM retired from the Regular Army on 1 December 1967.  At that time the RSFPP was offered by the Department of Defense which provided an annuity to a surviving beneficiary.  There is no evidence that the FSM elected to participate in the RSFPP.

5.  The FSM neglected two additional opportunities to enroll in the SBP during the open enrollment seasons conducted from 21 September 1972 through 20 March 1974 and 1 October 1981 through 30 September 1982.

6.  DFAS correspondence dated 7 February 2008 shows that the applicant’s counsel was advised of the applicant’s ineligibility for SBP as a result of the FSM’s non-election to participate in the RSFPP or SBP.  This correspondence clearly states that the applicant would not be entitled to any SBP benefits.

7.  There is no evidence that the FSM elected to participate in the RSFPP or SBP and spousal concurrence was not required before declining coverage.  Therefore, the applicant is not entitled to SBP benefits.

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)                                         AR20080012267





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ABCMR Record of Proceedings (cont)                                         AR20080012267



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