IN THE CASE OF:
BOARD DATE: 10 June 2010
DOCKET NUMBER: AR20090020586
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 her mother be given Survivor Benefit Plan (SBP) annuity payments from the date of her father's death.
2. The applicant states that she was not aware that her mother was not receiving a pension from her father's military service until she was put in an assisted living home with Alzheimer's disease. She now needs that pension to keep her mother in the assisted living home.
3. The applicant provides a memorandum from the Department of Crime Control and Public Safety, Joint Force Headquarters, North Carolina National Guard dated 12 November 2009 with enclosures.
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 applicant's father, a deceased former service member (FSM), was born on 9 December 1924, and he enlisted in the Enlisted Reserve Corps (ERC) on 20 September 1943. He was inducted into the Army of the United States on
11 October 1943 and commissioned on 4 July 1945. He was released from active duty on 15 February 1947.
3. He served in the Army National Guard in a commissioned status and was promoted to lieutenant colonel. He was transferred to the Retired Reserve on 9 December 1984 with over 35 years of qualifying service for retired pay at age 60.
4. On 9 September 1984, the FSM submitted a DA Form 4240 (Data for Payment of Retired Army Personnel) in which he marked Item 12e, Survivor Benefit Plan, "I decline coverage." In Part VII of this form, the FSM's wife acknowledged by her signature "I, the spouse of [the FSM], have been fully informed and counseled concerning the options available under the Survivor Benefit Plan for a survivor annuity. I understand the decision which has been made and is reflected on the reverse of this certificate."
5. On 20 December 1984, the FSM was issued a 20-year letter certifying eligibility for retired pay. On 12 December 1984, the FSM was placed on the Retired List with authorization for retired pay.
6. Public Law 92-425, the SBP, 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. Changes in SBP options are not authorized except in specific instances, or authorized by law.
DISCUSSION AND CONCLUSIONS:
1. When the FSM applied for retired pay, he declined SBP coverage and his wife concurred with that election.
2. While it is unfortunate that the family lacks funds for their mother's assisted living home, their father and mother were offered the opportunity to enroll in the SBP and declined that coverage. As such, there is no error or injustice in the lack of SBP payments.
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) AR20090020586
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