IN THE CASE OF:	  

		BOARD DATE:	  6 January 2011

		DOCKET NUMBER:  AR20100019137 


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 payment of a Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM).

2.  The applicant states she was told if she did not sign (concur with her husband's decision) to opt out of the SBP his coverage would default to spouse coverage by law.  However, the law requiring her consent was not in effect at the time.  She also states she was never counseled or given a choice regarding the SBP election.  If she had been properly counseled she would have opted to take the SBP coverage.

3.  The applicant provides a:

* DA Form 4240 (Data for Payment of Retired Army Personnel) 
* Marriage License
* Certificate of Death
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 1172 (Application for Uniformed Services Identification and Privilege Card)
* Letter to the Defense Finance and Accounting Service (DFAS)

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 11 December 1963 and married the applicant on 6 July 1978.  He subsequently executed a series of extensions and/or reenlistments in the RA, served in various staff and leadership positions, and attained the rank/grade of sergeant first class (SFC)/E-7.

3.  On 12 July 1985, in connection of his upcoming retirement, the FSM completed a DA Form 4240.  He indicated that he was married and had dependent children and he elected to decline SBP coverage.  He and a witness authenticated this form by placing their signatures in items 19 (Signature of Member) and 20 (Signature and Address of Witness).

4.  Section VII (SBP Certificates - Required when married member does not elect full coverage or declines coverage for spouse) of the DA Form 4240 indicates the FSM's spouse, the applicant, was not available for counseling and she was instead informed by letter.  The form reflects the signature and address of the counselor as well as the date the letter was sent, 12 July 1985, to the applicant. 

5.  The FSM was honorably retired on 31 August 1985 and he was placed on the retired list in his retired rank/grade of SFC/E-7 on 1 September 1985.  The 
DD Form 214 he was issued shows he completed over 20 years of active military service.

6.  On 17 November 2000, the FSM died.  His death certificate shows he was married to the applicant at the time of death. 

7.  On 17 March 2010, by letter to DFAS, the applicant indicated she was never counseled upon the FSM's retirement regarding her options under the SBP and that she never received a letter informing her of his election at the time.  

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

9.  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 retired/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.

10.  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.  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.  

DISCUSSION AND CONCLUSIONS:

1.  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 on 12 July 1985.  The SBP form shows his spouse, the applicant, was not present for counseling and that she was notified by letter of his election not to participate in the SBP.  

2.  At the time of this election, there was no legal requirement for the spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage or declined coverage.  The law requiring a spouse concurrence when a married member does not elect full coverage or elects to decline coverage became effective on 1 March 1986, several months after the FSM retired.  In view of the foregoing, there is insufficient evidence to grant the applicant the requested relief in this case.

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)                                         AR20100019137



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ABCMR Record of Proceedings (cont)                                         AR20100019137



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