BOARD DATE: 15 October 2009
DOCKET NUMBER: AR20090007384
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, requests correction of the FSM's military records to show that he had elected to participate in the Survivor Benefit Plan (SBP).
2. The applicant states that because the FSM served in the Army for 20 years she should be entitled to receive SBP. Her income is very low and SBP would dramatically improve her life.
3. The applicant provides, in support of her application, copies of her marriage certificate and the FSM's death certificate and Honorable Discharge Certificate.
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. The FSM enlisted in the Regular Army on 7 June 1957. He married the applicant on 9 October 1959. The FSM served through a series of reenlistments until his retirement for length of service on 30 June 1977. He had attained the rank of sergeant first class, pay grade E-7 and had completed 20 years and 24 days of creditable active duty service.
3. A DA Form 4240 (Data for Payment of Retired Army Personnel) dated in June 1977 shows that the FSM declined coverage under the SBP. The applicant signed this form indicating that she had been fully informed and counseled concerning the options available under the SBP. She further indicated that she understood the decision not to participate in the SBP.
4. The FSM died on 1 February 2002.
5. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that she should be entitled to receive SBP based on the FSM's 20-year period of service.
2. The FSM, with the applicant's knowledge and understanding, declined to participate in the SBP. Not a single SBP premium was paid for nearly a 25-year period. There is no evidence that the FSM or applicant took any action prior to the FSM's death to reverse their decision to not participate in SBP.
3. There are no provisions of law or regulation that provide for reversing the FSM's decision, with the applicant's concurrence, not to participate in SBP.
4. In view of the above, the applicant's request for SBP should be denied.
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) AR20090007384
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090007384
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2010 | 20100009374
Had they been given the correct information at the time of retirement the FSM would have elected to participate in the SBP. The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires. The available evidence shows that prior to retirement the FSM was provided an opportunity to make an SBP election and he willingly and in writing elected not to participate in the SBP.
ARMY | BCMR | CY2006 | 20060014739
In the DFAS advisory opinion, the DFAS opined that the Texas Default Judgment was insufficient to establish the applicant as an eligible SBP beneficiary because the existence of a court order declaring that she is the FSM's lawful spouse does not overcome the fact that the FSM declined SBP coverage upon his retirement and affirmatively elected SBP coverage for an invalid spouse during an open SBP enrollment season. Given that a Declaratory Judgment was made by a court of competent...
ARMY | BCMR | CY2007 | 20070003024
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 July 2007 DOCKET NUMBER: AR20070003024 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The applicant requests, in effect, that the records of her deceased former spouse, a former service member (FSM), be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) for former spouse...
ARMY | BCMR | CY2009 | 20090019831
The applicant requests, in effect, that the records of her late husband, a deceased former service member (FSM), be corrected to show he elected immediate annuity Reserve Component Survivors Benefit Plan (RCSBP) coverage. The applicant was the FSM's wife for 27 years. Unfortunately, at the time the FSM was issued his 20-year letter, the law stated that if a Reservist failed to make an election within 90 days of being issued a 20-year letter, the SBP election defaulted to option A, to...
ARMY | BCMR | CY2011 | 20110017403
The case corrected the military records of an FSM to show the applicant (the FSM's spouse) was entitled to an RCSBP annuity effective the date following the FSM's death. There was no evidence the FSM completed a DD Form 1883 or that the spouse was informed the FSM could participate in the RCSBP. The evidence of record shows the FSM received his Twenty-Year Letter with the accompanying SBP forms in June 2000. a.
ARMY | BCMR | CY2014 | 20140000511
The applicant (the spouse of a deceased former service member (FSM)) requests reconsideration of a previous application to correct the records of her late husband to show he elected to participate in the Reserve Component Survivor Benefit Plan (RCSBP) for spouse coverage. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120013960,...
ARMY | BCMR | CY2005 | 20050002897C070206
The applicant states that Section 24 of the DA Form 4240 (Data for Payment of Retired Army Personnel) contains a signature which has been forged. She requests that this signature be removed and replaced with a statement indicating that she did not agree with the decision of her deceased husband, a former service member (FSM), to decline SBP. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing that the applicant...
ARMY | BCMR | CY2012 | 20120018205
The applicant, the widow of a deceased former service member (FSM), requests correction of his records to show: * He timely submitted a DD Form 1883 (Survivor Benefit Plan Election Certificate) * She is entitled to be paid the SBP annuity based on his death in 2002 2. The applicant provides: * Denial letter from the U.S. Army Human Resources Command (HRC), dated 21 August 2012 * DD Form 2656-7 (Verification of Survivor Annuity), dated 28 July 2012 * Marriage license * Certificate of Death *...
ARMY | BCMR | CY2010 | 20100008441
The applicant, the widow of a former service member (FSM), requests, in effect, correction of the FSM's records to show she is entitled to Survivor Benefit Plan (SBP) benefits. The applicant provides copies of: * two self-authored Petitions * birth certificates for the FSM, herself, and their son * her and the FSM's marriage license * the FSM's Retirement Orders * the FSMs DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * the FSM's certificate of death * a...
ARMY | BCMR | CY2011 | 20110014920
There is no indication in the FSM's service records that she made an election within 90 days of receiving her 20-year letter to enroll in the RCSBP. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement and participation in SBP, but were not yet age 60, to provide an annuity for their survivors should they die before reaching age 60. The FSM's records do not indicate that she elected to participate in the RCSBP and the...