IN THE CASE OF:
BOARD DATE: 13 April 2010
DOCKET NUMBER: AR20090014227
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 military records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP) for spouse coverage and that she be paid the SBP annuity.
2. The applicant states, in effect, she was not given the opportunity to accept or decline full survivor benefits at the time of the FSMs retirement.
3. The applicant provides the following documents in support of her application: death certificate; retirement orders, dated 31 October 1975; DD Form 214 (Report of Separation from Active Duty); and DA Form 4240 (Data for Payment of Retired Army Personnel).
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 25 September 1937. After having prior enlisted service, the applicant was appointed as a Reserve commissioned officer on 2 December 1964 with a concurrent call to active duty.
2. On 18 November 1975, the applicant completed a DA Form 4240 and declined to participate in the SBP. He indicated he was married and had dependent children. In Part VIII (SBP Certificates), the applicant did not acknowledge she had been fully informed and counseled concerning the options available under the SBP for a survivor annuity. The form indicated the applicant was not available for counseling and was informed by letter dated 18 November 1975.
3. The FSM was retired from active service and placed on the retired list on 1 January 1976.
4. The FSM died on 24 October 1993. His death certificate shows his marital status as married and lists the applicant as spouse.
5. Public Law 92-425, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.
6. 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 maximum spouse coverage. Neither spousal concurrence or notification is required when a member fails to enroll in the SBP during an open season.
7. Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992. Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993. Extensive publicity was given in Army Echoes.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends she was not given an adequate opportunity to accept or decline full survivor benefits at the time of the FSMs retirement. However, the evidence of record does not support this claim. The available evidence shows the applicant was not available for counseling; however, she was informed by letter dated 18 November 1975.
2. The FSM retired on 1 January 1976. He was married to the applicant at that time and elected not to participate in the SBP. The law at the time did not require spousal concurrence to an election of less than maximum spouse coverage.
3. There is no evidence the FSM attempted to enroll in the SBP during an open season.
4. Regrettably, in view of the foregoing there is no basis for granting the applicant's request.
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) AR20090014227
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