IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100008441 


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 the FSM's records to show she is entitled to Survivor Benefit Plan (SBP) benefits. 

2.  The applicant states, in effect, her late husband took her and their son to live with her mother in Los Angeles, CA back in 1980.  He told her that he was going to seek employment in Arizona and he would come back to get them once he found a job.  He would call occasionally, but he never returned; leaving her to raise their son alone.  Numerous years after her husband's departure, she received a telephone call informing her that he had passed away.

3.  She further states that upon her husband's death she applied for benefits and the only compensation she ever received was a check in the amount of $893.62.
In 2004, she received a letter informing her she did not qualify for SBP due to the fact the FSM had not elected to participate.  She contends she has never been shown proof of whether or not he elected to participate.  She states that she never received child support or welfare.  She is unable to work and she needs to help her 96-year old mother, but she currently only receives a small amount of money from the Social Security Administration.

4.  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 FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* the FSM's certificate of death
* a letter from the Chief, Retiree Accounts Division Directorate for Retired/Annuitant Pay, Defense Finance and Accounting Service (DFAS), Indianapolis, IN
* the FSM's DFAS-CL 7220/148 (Retiree Account Statement), dated 9 January1999
* a Standard Form (SF) 1174 (Claim for Unpaid Compensation of Deceased Member of the Uniformed Services)
* a letter from a Customer Service Manager at the Department of Defense Manpower Data Center, Seaside, CA
* a letter from a Military Pay Technician in the Casualty Department of Retired Pay Operations at DFAS, London, KY
* a message from the Retired Pay Department of DFAS
* her DD Form 1173 (United States Uniformed Services - Identification and Privilege Card)
* her Social Security Administration Form 1099 (Social Security Benefit Statement) for 2009

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 military personnel record contains the following pertinent information:

	a.  Item 10 of a DA Form 2339 (Application for Voluntary Retirement, dated 5 May 1972, shows he elected not to participate in the Retired Serviceman's Family Protection Plan (RSFPP).

	b.  Headquarters, Fifth U.S. Army, Fort Sam Houston, TX, Letter Orders Number RE-6-163, dated 15 June 1972, relieved him from active duty on 30 June 1972 and placed him on the Retired List effective 1 July 1972.

	c.  Item 31 of a DA Form 3713 (Data for Retired Pay), dated 22 June 1972, shows he had not made an election of options for participation in the RSFPP.

	d.  His DD Form 214 for the period ending 30 June 1972 shows he was honorably retired in the rank/pay grade of sergeant first class/E-7 after completing 20 years, 5 months, and 29 days of active duty service.

3.  On 15 August 1972, the applicant and the FSM were married in Bell County, TX.

4.  On 26 December 1976, the son of the applicant and the FSM was born in Killeen, TX.

5.  A letter from the Chief, Retiree Accounts Division Directorate for Retired/Annuitant Pay, DFAS, Indianapolis, IN, dated 9 December 1993, informed the FSM of legislative changes which had an impact on the Cost of Living Allowance and SBP coverage for retirees.  This letter did not indicate whether or not the FSM was participating in the SBP.

6.  The FSM's DFAS-CL/7220/148, dated 9 January 1999, shows he was not paying an SBP premium.  The SBP Coverage section on the reverse side of this form contained the entry "NO SBP ELECTION IS REFLECTED ON YOUR ACCOUNT."

7.  On 21 October 1999, the FSM died.  Item 12 (Surviving Spouse) of the FSM's death certificate shows he was married to the applicant at the time of death.

8.  On 20 February 2003, a Customer Service Manager at the Department of Defense Manpower Data Center, Seaside, CA, sent a letter to the applicant informing her they had confirmed the Defense Enrollment Eligibility Reporting System (DEERS) record for both her and the FSM based upon documentation she had provided.

9.  On 13 August 2004, a Military Pay Technician in the Casualty Department of Retired Pay Operations at DFAS, London, KY, sent a letter to the applicant informing her that records on file at that center showed the FSM did not elect to participate in either the SBP or the RSFPP upon retirement.  As a result of the FSM's declination of these plans, the applicant's application for SBP and/or RSFPP was denied.

10.  The applicant submitted an SF 1174 and was provided a check in the amount of $893.62.

11.  The applicant's SSA Form 1099 for the 2009 tax year shows she received $9,100.80 in benefits throughout the year.

12.  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.

13.  The RSFPP was the Department of Defense survivor program in effect prior to 21 September 1972 when it was replaced by the Survivor Benefit Plan.  RSFPP coverage could not be established after 20 September 1972.  During the SBP initial enrollment period (21 September 1972 to 20 March 1974), members with RSFPP coverage could terminate that coverage and elect SBP coverage, or keep the RSFPP coverage in addition to electing SBP coverage.  Only the member's spouse and dependent children on the date of retirement could be covered.  A spouse or child acquired after retirement could not be covered by the RSFPP.

14.  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 provided that every member having a spouse and/or child(ren), who retired/transferred to the retired list on or after that date, was automatically covered under the SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

15.  Public Law 92-425 declared a 12-month Open Season for those members who retired prior to enactment of the law. Public Law 93-155, enacted               16 November 1973, extended that Open Season from 12 to 18 months            (21 September 1972 – 20 March 1974).

16.  Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.  

17.  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.

18.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999-29 February 2000.

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 RSFPP election and he willingly and in writing chose not to participate.  Accordingly, he was not enrolled in the RSFPP and did not have premiums deducted from his retired pay.

3.  Subsequent to the FSM's retirement, he and the applicant were married.  The following month Public Law 92-425 established the SBP.  Subsequent to his retirement, three Open Seasons were held, thus allowing the FSM three opportunities to enroll his spouse and/or son in the SBP at the full amount.  He did not do so.  Regrettably, there is no error or injustice.

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)                                         AR20100008441



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ABCMR Record of Proceedings (cont)                                         AR20100008441



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