IN THE CASE OF:
BOARD DATE: 22 March 2011
DOCKET NUMBER: AR20100020483
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 deceased former service member (FSM), requests, in effect, that she be designated as the annuitant of the FSM's Survivor Benefit Plan (SBP).
2. She states that her husband made an incorrect election for the SBP in 1972.
She understands that if his election is corrected that she will have to pay for the SBP cost before she actually receives the SBP payments.
3. She provides:
* a copy of a marriage certificate
* a copy of the FSMs Certificate of Death
CONSIDERATION OF EVIDENCE:
1. The FSMs military service records show that he was inducted into the Army of the United States on 20 May 1943. The applicant and FSM married on
14 February 1958.
2. The FSM's record contains a copy of an AGPZ Form 977 (Data for Retired Pay) dated 18 October 1965, which shows that the FSM did not have a DA Form
1041 (Retired Serviceman's Family Protection Plan) on file when he submitted his retirement packet.
3. The FSM retired from the Army on 31 December 1965, after serving honorably on active duty for a total of 21 years, 11 months, and 1 day.
4. The FSM died on 8 July 2010.
5. On 25 January 2011, the Defense Finance and Accounting Service (DFAS) indicated the FSM's records did not show he elected to participate in SBP.
6. Public Law 92-425, enacted on 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. Upon creation of the SBP, an 18-month Open Season was conducted from 21 September 1972 through 20 March 1974, in which all pre-1972 retirees were given the option to enroll. The Department of the Army contacted all previously retired service members and explained to them the benefits and procedures provided by SBP. This was done on several occasions. First, a bulletin was sent out describing SBP. The bulletin was followed by a circular and then by a letter which included a form, which when completed and returned would extend the benefits of SBP to those already retired. A final notice provided a box to check on a postal card indicating the retiree's intention.
7. Public Law 97-35, enacted on 12 August 1981, established the second Open Season from 1 October 1981 30 September 1982. Extensive publicity was given in Army Echoes, the Army bulletin established to provide information to retirees and mailed to retirees on a regular (e.g. quarterly) basis.
8. Public Law 101-189, enacted on 29 November 1989, established an Open Season to be conducted 1 October 1991 through 30 September 1992. Extensive publicity was given in Army Echoes.
9. Public Law 101-510, enacted on 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993.
10. Public Law 108-375, enacted on 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. Extensive publicity was given in Army Echoes.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that she should be designated as the annuitant of her deceased spouses SBP was carefully considered.
2. There are no documents in the available records, or provided by the applicant, which indicate the FSM ever made an election to participate in the SBP, or that he subsequently elected to participate in the SBP during an Open Season enrollment period. There is also no evidence the FSM ever paid any SBP premiums. The Army provided extensive publicity and opportunities to enroll in the SBP during the initial Open Season and each of the following Open Seasons.
3. In the absence of evidence that the FSM elected to participate in a survivor benefit program, there is no basis to now designate the applicant as the recipient of said benefits.
4. 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) AR20100020483
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ABCMR Record of Proceedings (cont) AR20100020483
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