BOARD DATE: 27 August 2009
DOCKET NUMBER: AR20090005772
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 his record be corrected to show that he paid into the Survivor Benefit Plan (SBP) since 1975; therefore, he is no longer required to pay SBP premiums.
2. The applicant states, in effect, that he elected full coverage for his spouse but his spouse did not sign the SBP election certificate. Therefore, she should have been counseled.
3. The applicant provides the following additional documentary evidence in support of his application:
a. a copy of his DD Form 214 (Report of Separation from Active Duty);
b. a copy of a DA Form 4240 (Data for Payment of Retired Army Personnel);
c. a copy of a blank Survivor Benefit Plan Certificate; and
d. a copy of a Paid-up SBP Attachment as of 20 January 2009 for (the applicant).
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. On 19 September 1955, the applicant enlisted in the Regular Army (RA) and he continuously served until he was retired by reason of sufficient service for retirement on 30 November 1975. On the following day, he was subsequently transferred to the U.S. Army Reserve (USAR) Control Group (Retired).
3. The applicant submitted a copy of DA Form 4240, dated 18 November 1975, which shows the following entries in Part II - Survivor Benefit Plan Election:
9. Are you married? X - Yes
10. Do you have children? X - Yes
11. Check the following to indicate the type of coverage you desire:
e. None X (Proceed to Part III)
4. Part III - Allotment Information of the DA Form 4240 shows that the applicant checked that he had reviewed all of his allotments and did not desire to make any changes.
5. The applicant submitted a blank SBP Certificate, which is required to be completed when a married Soldier does not elect full coverage for spouse.
6. The applicant submitted a Paid-up SBP Attachment as of 20 January 2009, which shows that the applicant was placed on the retirement rolls as of
1 December 1975 and is currently 71 years old. This document also shows that he had paid into the SBP program for 315 months from 8 September 1982 to
31 December 2008. A notation on this form states that SBP was elected during the "1992" [sic should be 1982] Open Season and premium deductions did not start until that time.
7. The Military Pay Office, Defense Finance and Accounting Service (DFAS) confirmed that the FSM enrolled in the SBP program on 8 September 1982 during the 1981-1982 Open Season and elected spousal coverage.
8. 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.
9. Public Law 97-35 enacted 13 August 1981, announced a one-year open enrollment period (1 October 1981 - 30 September 1982) for members entitled to retired pay on or before 13 August 1981.
10. Public Law 99-145, enacted 8 November 1985, but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
11. Public Law 106-65, enacted 17 October 1998, authorized a paid-up provision to the SBP. The law states that, effective 1 October 2008, no reduction may be made in the retired pay of a participant in SBP for any month after the later of the 360th month of retired pay reduction or the month during which the participant reaches 70 years of age.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the FSM was released from active duty for the purpose of retirement on 28 February 1975. At that time, he had completed a DA Form 4240 which indicated that he did not desire to enroll in the SBP. The FSM later enrolled in the program during the 1982 Open Season.
2. The applicant contends that his spouse was not counseled regarding his SBP election at the time of his retirement and submitted a blank SBP certificate as proof. When the applicant retired in 1975 and when he enrolled in the SBP program in 1982, there was no law that required the spouse to concur or nonconcur with the SBP election in writing.
3. Further, the applicant paid no SBP premiums until his 1982 Open Season enrollment. Therefore, there is no basis in law or in equity to credit the applicant for SBP payments he never made.
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) AR20090005772
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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