IN THE CASE OF:	  

		BOARD DATE: 	        4 June 2009

		DOCKET NUMBER:  AR20090000812 


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, that she be designated as the annuitant of the FSM's Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, that her husband, the FSM, was not aware that an SBP program existed when he was discharged.  She also states, in effect, that after the FSM retired they had no one to explain what retiree benefits were available to them.

3.  The applicant provides a copy of their marriage certificate, a copy of the FSM’s Certificate of Death, copies of sworn statements, and a memorandum from the New Hampshire Army National Guard Retirement Services Noncommissioned Officer requesting that she receive SBP.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military service records show that he enlisted in the U.S. Army on 
2 April 1946.  The applicant and FSM married on 30 March 1957.

2.  The FSM's record contains a copy of a DA Form 1041 (Election of Options Under Retired Serviceman's Family Protection Plan) signed and witnessed on
4 March 1965, which shows in item 11 that he elected not to receive reduced retired pay in order to provide an annuity for his dependants.

3.  The FSM retired from the Army on 31 October 1967, after serving honorably on active duty for a total of 21 years, 6 months, and 26 days.

4.  The FSM died on 29 October 2008.

5.  The applicant submitted three copies of sworn statements [including a self-authored sworn statement and a sworn statement from her daughter] stating that the FSM was unaware of the SBP or the open seasons that would have allowed him to apply after he retired.

7.  The applicant submitted a memorandum from the Retirement Services NCO, Joint Forces Headquarters-New Hampshire, New Hampshire Army National Guard, subject:  Request SBP for the Widow of a Recently Deceased Army Retiree, dated 16 November 2008.  He requested that the applicant be allowed to receive 55 percent of the FSM's SBP or Retired Servicemen's Family Protection Plan even though he was not enrolled in either program according to the Defense Accounting and Finance Service (DFAS).

8.  Public Law 87-381, enacted on 4 October 1961, established the Retired Serviceman’s Family Protection Plan.  

9.  Public Law 92-425, enacted on 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan and 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.  Upon creation of the SBP, an 18-month Open Season was conducted from                 21 September 1972 through 20 March 1974, in which all pre-1972 retirees were given the option to enroll.  The Department of the Army contacted all previously retired service members and explained to them the benefits and procedures provided by SBP.  This was done on several occasions.  First, a bulletin was sent out describing SBP.  The bulletin was followed by a circular and then by a letter which included a form, which when completed and returned would extend the benefits of SBP to those already retired.  A final notice provided a box to check on a postal card indicating the retiree's intention. 

10.  Public Law 97-35, enacted on 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  Extensive publicity was given in Army Echoes, the Army bulletin established to provide information to retirees and mailed to retirees on a regular (e.g. quarterly) basis.

11.  Public Law 101-189, enacted on 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  Extensive publicity was given in Army Echoes.

12.  Public Law 101-510, enacted on 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993.

13.  Public Law 108-375, enacted on 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  Extensive publicity was given in Army Echoes.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be designated as the annuitant of her deceased spouse’s SBP was carefully considered.

2.  There are no documents in the available records, or provided by the applicant, which indicate the FSM ever made an election to participate in the Retired Serviceman’s Family Protection Plan, the plan that preceded the SBP, or that he subsequently elected to participate in the SBP during an Open Season enrollment period.  There is also no evidence the FSM ever paid any SBP premiums.  The Army provided extensive publicity and opportunities to enroll the SBP during the initial Open Season and each of the following Open Seasons.

3.  In the absence of evidence that the FSM ever elected to participate in a survivor benefit program, there is no basis to now designate the applicant as the recipient of said benefits.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  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

____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)                                         AR20090000812



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ABCMR Record of Proceedings (cont)                                         AR20090000812



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