IN THE CASE OF:	  

		BOARD DATE:	    11 January 2011

		DOCKET NUMBER:  AR20100016126 


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 the records of her deceased husband, a retired former service member (FSM), be changed to show he elected spouse coverage under the Survivor Benefit Plan (SBP) on the DD Form 2656 (Data for Payment of Retired Personnel), dated 28 March 2000.

2.  The applicant states in her initial application that when the FSM and she declined SBP in March of 2000, they were assured they would be able to amend that choice in the future.  She adds they were given the impression they would be able to change their election whenever they chose.  She states she was surprised when she learned there was an "open season" in 2005 that lasted for 1 year.  She states she was told the open season notification was by bulletin (taken to mean the Army Echoes newsletter for retirees).  She adds that there is no doubt the FSM and she would have changed their election to receive SBP had they known about the open season since their daughter was graduating college and the FSM was working on a regular basis.

3.  The applicant now states when she received the letter from the Board, dated 18 March 2010, advising her that the SBP annuity would be established by officials at the Defense Finance and Accounting Service (DFAS) she was pleased that matters had been taken care of so efficiently.  She then states, on 1 June, through a phone conversation with DFAS she discovered there was some confusion and the annuity would not be starting.  She states, in effect, that while the DD Form 2656 of March 2000 is not in error, the FSM and she only made the decision not to elect SBP benefits because the retirement services officer assured them it would be easy to change this status and elect SBP coverage at a later date.  She requests the Board change the record to show the FSM elected spouse coverage under the SBP.

4.  The applicant provides a self-authored letter, Certificate of Marriage, Certificate of Death, copy of her previous DD Form 149 (Application for Correction of Military Record), DD Form 1883 (Survivor Benefit Plan Election Certificate), and DD Form 2656.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 28 December 1950.  His military records show he enlisted in the Army National Guard on 11 June 1969.  The FSM was commissioned as a Reserve Commissioned Officer in the rank of second lieutenant on 21 June 1976.  He was promoted to the rank of lieutenant colonel on 11 April 1996.

2.  The Certificate of Marriage provided by the applicant shows she married the FSM in the State of New Jersey on 21 April 1974.

3.  On 7 April 1989, the FSM was ordered to active duty in an Active Guard Reserve status and it appears he continued to serve in that status until his retirement date. 

4.  On 25 October 1989, the FSM completed a DD Form 1883 showing he elected to participate in the Reserve Component SBP for spouse only coverage at the full base amount with immediate coverage.

5.  The applicant provides a copy of a DD Form 2656, signed and dated by herself, the FSM, and a witness on 28 March 2000, which shows that during the FSM's retirement processing he and the applicant elected not to participate in the SBP.

6.  On 30 April 2000, the FSM was mandatorily retired and placed on the Retired List the following day in the rank of lieutenant colonel/pay grade O-5.

7.  The applicant provided a death certificate showing the FSM died on 7 April 2009.

8.  On 18 March 2010, the ABCMR sent a letter to the applicant in response to her request for correction of military records, in effect, the SBP annuity.  The 


letter indicated that in a telephone conversation between a member of the Board's staff and a staff member at DFAS it was determined that an annuity would be established for the applicant. 

9.  Public Law 92-425, the SBP, enacted on 21 September 1972, 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.  Changes in SBP options are not authorized except in specific instances or as authorized by law.

10.  Public Law 99-145, enacted on 8 November 1985 (but effective 1 March 1986), required a spouse's written concurrence for a retiring member's election that provides less than the maximum spouse coverage.

11.  Public Law 108-375, enacted 28 October 2004, established an SBP Open Season from 1 October 2005 through 30 September 2006.  To apply, members were required to complete a DD Form 2656-9 (Survivor Benefit Plan (SBP) and Reserve Component Survivor Benefit Plan (RCSBP) Open Enrollment Election).  Elections must have been submitted to the Service designated agent [Director, DFAS-US Military Retired Pay, PO Box 7130, London, KY 40742-7130] indicated in the instructions on DD Form 2656-9.  All elections were required to be postmarked by 30 September 2006.

12.  Issues of Army Echoes (the Army bulletin published three times a year and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army), consistently contain a reminder to retirees that they are responsible for updating their retired pay file, using the Kentucky mailing address provided, within one year of the event if they marry, remarry, have a child, are widowed or divorced and need to make or update a SBP election.

13.  Extensive publicity regarding the establishment of an SBP Open Enrollment period to be conducted 1 October 2005 to 30 September 2006 was given in Army Echoes.

14.  Reserve Component members are given the option of electing immediate coverage under the RCSBP upon receipt of their notification of eligibility for retired pay (the so called 20-year letter).  If a member elects coverage, but thereafter serves enough time for a regular retirement (20 or more years of active duty), the member then becomes eligible for the SBP.  At this point, the RCSBP election becomes void and the member's election concerning SBP determines if a beneficiary will receive an annuity.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the FSM and she were led to believe by a retirement services officer that it would be easy to change their March 2000 SBP election not to participate in the SBP and that they were not aware of the 2005 open season for changing an SBP election.

2.  If the FSM and the applicant had intended to change their SBP election at a later date it would be reasonable to presume they would read official publications mailed to them.  The SBP Open Season was announced in several editions of Army Echoes for the period in 2005.

3.  As reflected in the applicant's statement, they elected not to participate in the SBP for financial reasons (sparing themselves the SBP premiums).  The fact that the FSM is now dead and the applicant would like to receive SBP benefits is understandable.  However, there is no error in the election made in March of 2000, and an SBP Open Season was available for a full year beginning in 2005 in which a change to their election could have been made.

4.  It is unfortunate that previous DFAS information was in error.  However, the Board will not compound the error by correcting the record.

5.  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)                                         AR20100016126



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ABCMR Record of Proceedings (cont)                                         AR20100016126



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