IN THE CASE OF:
BOARD DATE: 10 December 2009
DOCKET NUMBER: AR20090006991
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 she be paid a Survivor Benefit Plan (SBP) annuity.
2. The applicant states her husband retired from the Army on 31 March 1979. During retirement processing, he chose not to participate in the SBP because he did not know what he was doing. The applicant states she never concurred with that decision.
3. The applicant provides her Certificate of Marriage to the FSM and the FSMs State of Arkansas Certificate of Death in support of her application.
CONSIDERATION OF EVIDENCE:
1. The FSMs records show he and the applicant were married on 6 July 1952 and he was inducted into the Army of the United States on 23 September 1952. He served continuously on active duty through a series of reenlistments and extensions until 31 March 1979, when he retired as a master sergeant with 26 years, 6 months, and 8 days of total active creditable service.
2. Prior to his retirement, the FSM was assigned to Fort Ord, CA and resided in San Jose, CA. In preparation for retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel) on 13 February 1979. On that form he elected to decline SBP coverage. There is no indication the applicant was present on 13 February 1979. A letter to the applicant, dated
13 February 1979, informed her of the FSMs decision stating, If the member chooses other than maximum coverage [under the SBP], the law requires that the spouse be notified. At the bottom of the letter is a statement, I understand the choice made by my spouse under the [SBP] plan. This statement is unsigned on the record copy in the FSMs Official Military Personnel File (OMPF).
3. From the FSM's placement on the Retired List on 1 April 1979 until his death on 24 March 2009, he did not participate in the SBP, nor did he pay any SBP premiums.
4. 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. It declared a 12-month Open Season for those members who retired prior to enactment of the law.
5. Public Law 99-145, enacted 8 November 1985, but effective 1 March 1986, established a requirement for spousal written concurrence when a retiring member elected less than maximum spouse coverage under the SBP.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests an SBP annuity stating she never concurred with the FSMs decision to decline coverage.
2. When the FSM retired in 1979, there was no requirement for a spouse to concur with a retiring member's SBP election. The only requirement was for the retiring members spouse to be aware of the decision. In this case, the Retirement Services Office, Fort Ord, sent the applicant a letter at her San Jose home address informing her of the FSMs decision. This letter met the notification requirement; however, even if the applicant never received the letter, it did not change the fact that she was powerless to effect a change in the FSMs decision.
3. The FSM and the applicant lived in retirement for almost 30 years receiving the FSMs full retired pay; never paying any SBP premiums. Therefore, there is no equitable consideration to be made in granting the applicants requested relief.
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 this requirement.
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) AR20090006991
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ABCMR Record of Proceedings (cont) AR20090006991
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