IN THE CASE OF:
BOARD DATE: 14 June 2011
DOCKET NUMBER: AR20100028587
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 entitlement to the Survivor Benefit Plan (SBP) annuity based on the death of her husband.
2. She states:
* she was married to the FSM on 28 October 1965
* the FSM retired on "31 October 1986"
* the FSM passed away on 4 April 2001
* she did not sign a spousal concurrence letter
* she will swear under oath that she does not remember seeing or receiving any information regarding SBP
* she now understands the DA Form 4240 (Data for Payment for Retired Army Personnel) procedural mandate for the lawful execution of SBP
* the DA Form 4240 states "you and your spouse must be fully counseled by your local personnel representative for the purpose of executive of certificate" [sic]
* being notified by letter does not negate or substitute for the procedural mandate established by the DA Form 4240
* since she was not properly counseled, the DA Form 4240 is a non- binding document
3. The applicant provides:
* the FSMs Certificate of Death
* a Certificate of Witness of Marriage
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 FSMs military service record shows he reenlisted in the U.S. Army on
23 August 1978. He married the applicant on 28 October 1965.
3. He was honorably retired on 31 August 1982 by reason of required service for retirement. He completed 26 years, 5 months, and 21 days of creditable active service.
4. His official record contains a:
a. DA Form 4240 that shows in:
(1) Part IV (SBP Election) 15e "I decline coverage" and an "X" in the corresponding block.
(2) Part IX (SBP Certificates) the entry "Spouse not available for counseling: informed by letter date: 12 August 1982."
b. DA Form 3173 (Data for Retired Pay), dated 12 August 1982, that shows in item 31 (Retired Servicemen's Family Protection Plan, Member States) the entry "NA"; and
c. Defense Finance and Accounting Service - Cleveland (DFAS-CL) Form 1012 (Telephone Notice of Death) which shows in:
(1) Item 15 (Did the Member have RSFPP (Retired Serviceman's Family Protection Plan) Coverage) a check in the "NO" block; and
(2) Item 16 (Did the Member have SBP Coverage) a check in the "NO" block.
5. The FSM died on 4 April 2001.
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 family members.
7. Public Law 101-189, enacted on 29 November 1989, established an Open Season to be conducted from 1 October 1991 through 30 September 1992. It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity. Extensive publicity was given in Army Echoes.
8. Public Law 101-510, enacted on 5 November 1990, delayed the start of the Open Season from 1 April 1992 through 31 March 1993.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that she should be designated as the annuitant of the FSMs SBP was carefully considered.
2. Evidence of record shows the FSM elected to decline enrollment in the SBP program upon retirement and a letter of notification was sent to her since she was unavailable for counseling.
3. There are no documents in the available record or provided by the applicant that indicates the FSM 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 a subsequent Open Season.
4. In the absence of evidence that the FSM ever elected to participate in the SBP, there is no basis to now designate the applicant as the annuitant of said benefits.
5. In view of the foregoing, there is no basis for granting the applicant's requested relief.
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) AR20100028587
2
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