IN THE CASE OF:	  

		BOARD DATE:	        14 MAY 2009

		DOCKET NUMBER:  AR20090000966 


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 entitlement to the Survivor Benefit Plan (SBP) benefit based on the death of her husband, a former service member (FSM). 

2.  The applicant states that she believes her husband elected to participate in the SBP, but she is not receiving the benefit.  

3.  The applicant provides a copy of the FSM’s DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 May 1982; a copy of her report of marriage, dated 28 April 1976; a copy of the FSM’s certificate of death, dated 5 July 2002; a copy of a certificate of cremation, dated 8 July 2002; a copy of the FSM’s Retiree Account Statement, dated 10 January 2002; a copy of an electronic deposit notification, dated 1 January 2009; a copy of VA Form 21-4138 (Statement in Support of a Claim), dated 21 July 2008; and a copy of an undated/unsigned DA Form 3739 (Application for Assignment/Deletion/                Deferment for Extreme Family Problems), in support of her 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 record shows he initially enlisted in the Regular Army on 23 April 1962 and married the applicant, Sin, on 28 April 1976, in Korea.

3.  The FSM’s record further shows he executed a series of extensions and/or reenlistments in the Regular Army, was assigned to various staff and leadership positions, and attained the rank/grade of sergeant first class (SFC)/E-7.

4.  On 24 February 1982, the FSM requested retirement and on 1 March 1982, his request was approved.  

5.  On 23 March 1982, the FSM completed a DD Form 4240 (Data for Payment of Retired Army Personnel).  He placed an "X" in items 13 and 14 of Part IV (Survivor Benefit Plan) indicating that he was married and had dependent children.  He also placed an "X" in items 15e electing to decline coverage.  His spouse, the applicant, indicated that she had been fully informed and counseled concerning the options available under the SBP for a survivor annuity and that she understood the decision which was made and reflected on the certificate.  She and a witness authenticated this form by placing their signatures in the appropriate places, on 30 April 1982.

6.  The FSM was honorably discharged on 31 May 1982 and was placed on the retired list in his retired rank/grade of SFC/E-7 on 1 June 1982.  The DD Form 214 he was issued shows he completed over 20 years of active military service.

7.  On 5 July 2002, the FSM died.

8.  Item 12 (Surviving Spouse) of the FSM's death certificate shows he was married to the applicant at the time of death.

9.  The FSM’s Retiree Account Statement, dated 10 January 2002, shows no SBP election reflected on his account.  

10.  There is no indication in the FSM’s pay records at the Defense Finance and Accounting Service (DFAS) that he participated in the SBP and/or contributed any premiums toward the SBP.

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.  Title 10, U.S. Code (USC), 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.  

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.  However, it was found without merit.

2.  The evidence of record shows that prior to his retirement, 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.  His spouse, having been fully informed and counseled concerning the options available under the SBP for a survivor annuity, signed the form indicating that she was aware of his election.  Her concurrence was not required under the law at that time.  There is no error or injustice.

3.  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 did not submit evidence which would satisfy this requirement.  Therefore, she is not entitled to the requested relief.

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.




      _______ _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)                                         AR20090000966





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ABCMR Record of Proceedings (cont)                                         AR20090000966



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