IN THE CASE OF:	  

		BOARD DATE:	 16 March 2010 

		DOCKET NUMBER:  AR20090015683 


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 former service member (FSM), requests, in effect, correction of his records to show she is entitled to Survivor Benefit Plan (SBP) benefits. 

2.  The applicant states that the SBP was not properly explained at the time of the FSM's retirement.  She was with her late husband at the time of his appointment and remembers a young Soldier telling them that the SBP was "like an additional insurance."  She adds that at the time of her husband's retirement, they were trying to save every dollar they could.  She and her husband thought if something unfortunate happened to him, she would receive half or some portion of his monthly pension.  With that in mind, they did not feel it was necessary to purchase any additional insurance.  She also states that when her husband died, she called officials at the Defense Finance and Accounting Service (DFAS) to make an adjustment to the pension deposit but was advised she would not be receiving a pension because her husband did not sign up to participate in the SBP.  She concludes that if the election (not to participate) could be rescinded, she would be willing to pay the premiums that would have been due from the date of her husband's retirement on 28 February 1997 to the date of his death on 25 May 2004.

3.  The applicant provides in support of her application a copy of the FSM’s 
DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 
28 February 1997; a copy of her marriage certificate, dated 17 May 1986; a copy of the FSM’s certificate of death, dated 25 May 2004; and a self-authored letter, dated 6 August 2009.
4.  On 14 September 2009, the applicant's Member of Congress requested a status of the applicant's request for the SBP annuity and submitted a copy of the applicant's California Driver License and a copy of her military Identification Card.

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM's record shows he initially enlisted in the Regular Army (RA) on 28 February 1977 and was trained in military occupational specialty 19E (Armor Crewmember).  He was honorably discharged on 11 January 1979.

3.  The FSM's records also show he again enlisted in the RA on 12 January 1979 and married the applicant on 17 May 1986.  The FSM’s records further show he executed a series of extensions and/or reenlistments in the RA, was assigned to various staff and leadership positions, and attained the rank/grade of staff sergeant (SSG)/E-6.  

4.  On 15 October 1996, in connection with his upcoming retirement, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated that he was married to the applicant and placed an "X" in items 28g electing to decline coverage.  His spouse, the applicant, indicated she had received information that explained the options available and the effect of those options.  She also indicated that she had signed this form of her own free will.  She and a witness authenticated this form by placing their signatures in the appropriate places, on 15 October 1996.

5.  The FSM was honorably retired on 28 February 1997 and was placed on the retired list in his retired rank/grade of SSG/E-6 on 1 March 1997.  The DD Form 214 he was issued shows he completed over 20 years of active military service.

6.  On 25 May 2004, the FSM died.

7.  Item 28 (Surviving Spouse) of the FSM's death certificate shows he was married to the applicant at the time of death.

8.  There is no evidence in the FSM’s DFAS pay records that shows he participated in the SBP and/or contributed any premiums towards the SBP.

9.  In her self-authored statement, dated 6 August 2009, the applicant states that she was married to the FSM and accompanied him throughout his several assignments.  During the retirement appointment, she inquired about the SBP but was told it was another type of insurance.  She feels they were not properly counseled and that if they had been given a proper explanation and information regarding the SBP, they would have elected to participate in the program.

10.  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. An election, once made, was irrevocable except in certain circumstances.  This law also provides that every member having a spouse and/or child(ren), who retires/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

11.  Title 10, U.S. Code (USC), section 1448, in effect at the time, required notice to a spouse if a member elected to participate in the SBP.  The statute also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay.  Title 10 USC, section 1448 was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount.  

12.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999-29 February 2000.  The retiree must have paid monthly premiums starting on the date of enrollment and a one-time, lump sum enrollment premium.  Extensive publicity was given in Army Echoes.  Army Echoes also warned that for a retiree with a high number of years since first being able to enroll a beneficiary in the SBP and whose retired pay was fairly high, the enrollment premium alone could exceed $50,000.






DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be entitled to receive SBP benefits was carefully considered.  

2.  The evidence of record shows that prior to his 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.  His spouse, having been fully informed and counseled concerning the options available under the SBP for a survivor annuity, concurred with this election.  Subsequent to the FSM's retirement, the law established an Open Season to be conducted from 1 March 1999 to 29 February 2000, thus allowing the FSM an opportunity to enroll his spouse in the SBP at the full amount.  He did not do so.  There is no error or injustice.

3.  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 did not submit evidence which would satisfy this requirement.  Therefore, she is not entitled to the 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)                                         AR20090015683



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ABCMR Record of Proceedings (cont)                                         AR20090015683



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