IN THE CASE OF:	  

		BOARD DATE:	  9 September 2009

		DOCKET NUMBER:  AR20090005450 


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, in effect, that the records of her late husband, a former service member (FSM), be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) within a year of his marriage to the applicant.

2.  The applicant states that her husband was not married when he was medically retired.  They married after he retired.  They were not aware that he could have elected SBP when they were married.  His mind was clouded due to the heavy medication he was taking from his service-connected disability.  She contends that he would have elected SBP if he had been aware that he could have done so.

3.  The applicant provides her husband's death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show that he enlisted in the Regular Army (RA) on 10 October 1985, he was awarded military occupational specialty (MOS) 11B (infantryman), and he was promoted to pay grade E-3.

2.  On 31 August 1986, a physical examination was conducted on the FSM.  This examination shows the FSM hit his head during a parachute jump landing which caused a closed head injury.  This resulted in lengthy, repetitive headaches and "blackouts."  Psychological testing was mixed, suggestive of both serious psychological difficulties and organic mental impairment.  The FSM was said to be alert, oriented to person and place, had clear speech, had linear and goal directed thought processes, and did not have any delusions, hallucinations, or suicidal or homicidal ideation.  His long term memory was intact but immediate and recent memory was impaired.  The physical examination was used by a medical evaluation board (MEB) which determined that the FSM was unfit for further military service and referred him to a physical evaluation board (PEB).

3.  A PEB convened and determined that the FSM was physically unfit and recommended that he be placed on the Temporary Disability Retired List (TDRL), rated at 30 percent disabled.  Accordingly, on 30 March 1987, the FSM was honorably released from active duty and placed on the TDRL.  In conjunction with his retirement he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) wherein he indicated that he was not married and declined SBP coverage.

4.  On 26 July 1990, the FSM had a periodic medical examination.  In that examination it was noted that the FSM had married and had a child since his placement on the TDRL, and he was working a part-time job which he liked.  He showed impaired memory from his closed head injury, with immediate memory being okay, recent memory impaired, and long-term memory okay.  The FSM was determined to be able to handle his financial affairs and was found to be competent within the stipulations of Title 37, U.S. Code, section 602.  The FSM was referred to a PEB which recommended that he be removed from the TDRL and permanently retired due to physical unfitness.

5.  Accordingly, on 19 November 1991, the FSM was removed from the TDRL and placed on the Retired List, rated at 30 percent disabled.

6.  The FSM died on 9 January 2009.

7.  Public Law 92-425, the SBP, 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.  Changes in SBP options are not authorized except in specific instances, or authorized by law.

8.  Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP, but who later marries or acquires a dependent child, may elect to 
participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.

9.  Army Echoes is an Army Bulletin for the Army Retiree published three times a year and mailed to Army retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.  These Bulletins consistently contain a reminder to retirees that they are responsible for updating their accounts within one year of marriage, remarriage, divorce, or upon the death of a spouse and that they may need to make or update a SBP election.  Periodically, these Bulletins contain articles explaining the SBP and the importance of keeping accounts up to date.

10.  Public Law 101-189, enacted 29 November 1989, established an           Open Season to be conducted 1 October 1991 (but deferred to 1 April                1992) through 30 September 1992.  Extensive publicity was given in Army Echoes.

11.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 through 29 February 2000.  Extensive publicity was given in Army Echoes.  

12.  Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006.  Extensive publicity was given in Army Echoes.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM was not aware that he could have elected SBP coverage when they were married and his mind was clouded due to the heavy medication he was taking from his service-connected disability.  She contends that he would have elected SBP if he had known that he could.

2.  However, prior to the FSM's placement on the TDRL, he was evaluated to be alert, oriented to person and place, had clear speech, had linear and goal directed thought processes, and he did not have any delusions, hallucinations, or suicidal or homicidal ideation.  His long term memory was intact but immediate and recent memory was impaired.  Prior to his permanent retirement, he was working a part-time job, but he showed impaired memory from his closed head injury, with immediate memory being okay, recent memory impaired, and long-term memory okay.  The FSM was determined to be able to handle his financial affairs and was found to be competent within the stipulations of Title 37, U.S. Code, section 602 at that time.

3.  Since all indications are that the FSM was mentally competent, it must be assumed that he made a conscious decision not to participate in SBP when he married.

4.  The applicant's contention that the FSM was not aware that he could have elected SBP after he married is speculative at best.  Since the FSM filled out an SBP election upon his placement on the TDRL, it must be presumed that he was informed by a Retirement Services Officer that he could elect SBP at a later date if he got married.  In addition, Army Echoes has consistently reminded retirees that they have a year to enroll in the SBP as a result from marriage or acquisition of a dependent child.  Further, three Open Seasons were announced in Army Echoes during the time the FSM was retired.

5.  Therefore, based on the foregoing, there is no basis for granting the applicant's 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.



      ___________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)                                         AR20090005450



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ABCMR Record of Proceedings (cont)                                         AR20090005450



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