IN THE CASE OF:
BOARD DATE: 5 July 2011
DOCKET NUMBER: AR20100028925
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 she be awarded a Survivor Benefit Plan (SBP) annuity based on the service of her deceased husband, a retired former service member (FSM).
2. The applicant states the FSM did not keep up with his retired service member benefits. Had she known about the SBP benefits when she married the FSM she would have wanted to do whatever was necessary to keep them.
3. The applicant provides:
* Department of State Health Services Vital Statistics Unit Certificate of Death showing the FSM's date of death as 18 October 2010
* The FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing the FSM retired effective 31 May 1964 FSM's Military Record and Report of Separation Certificate of Service showing the FSM was relieved from active duty on 22 December 1945
* AIC Form 161A (Chronological Active Military Service)
* Special Orders 60, Headquarters, Department of the Army, dated
5 March 1964 announcing FSM's retirement from active duty
* A State of Texas Marriage Certificate dated 5 March 2003
CONSIDERATION OF EVIDENCE:
1. The FSM completed an AGPZ Form 977 (Data for Retired Pay) on 5 March 1964. Item 29 (Retired Servicemen's Family Protection Plan) shows "Positive DA Form 1041 attached." A DA Form 1041 (Election of Options Under the Uniformed Services Contingency Option Act of 1953), dated 31 October 1957, shows he elected a 1/4 annuity payable to his widow and/or surviving children.
2. The FSM's letter requesting voluntary retirement, dated 3 February 1964, shows in paragraph 6 "I have accomplished an election of options under the Retired Serviceman's Family Protection Plan, DA Form 1041. I did elect to participate."
3. His records indicate he was married at the time of his retirement. There is no available record of the disposition of that marriage. There is also no evidence he ever converted any USCOA (Uniformed Services Contingency Option Act) or Retired Serviceman's Family Protection Plan (RSFPP) coverage he may have had into SBP coverage as required by law.
4. On 5 March 2003, the FSM married the applicant. He died on 18 October 2010. The applicant and the FSM were married for 7 years, 7 months and
14 days.
5. An email note from the External Communications Office of the Defense Finance and Accounting Service states the FSM retired with no eligible SBP beneficiaries, and although he now has a spouse he never notified DFAS of the marriage or supplied them with a marriage certificate.
6. Public Law 83-239, enacted 8 August 1953, established the USCOA (Uniformed Services Contingency Option Act). It covered only persons dependent on the member at the time of his retirement.
7. Public Law 87-381, enacted 4 October 1961, changed the USCOA to the RSFPP. The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA.
8. Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and 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. The RSFPP did not automatically convert to the SBP. It declared a 12-month Open Season for those members who retired prior to enactment of the law (later extended until 20 March 1974).
9. Public Law 108-375, enacted 28 October 2004, established an Open Season to be conducted 1 October 2005 through 30 September 2006. The retiree must have paid monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so. Extensive publicity was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army.
DISCUSSION AND CONCLUSIONS:
1. There is no available evidence that the FSM opted to participate in the SBP when the program was established as required to maintain/convert USCOA/RSFPP to SBP coverage.
2. The FSM and the applicant were married on 5 March 2003. There is no evidence he enrolled in the SBP for spouse coverage during the one available Open Season enrollment opportunity after their marriage.
3. Based on the above, the applicant's request should be denied.
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 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) AR20090018686
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100028925
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2002 | 2002077690C070215
APPLICANT REQUESTS: That the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP). An election to provide an annuity of one-half, one-quarter, or one-eighth of the member's retired pay had to be made before the end of the 18th year of service. Records at DFAS-CL show that he failed to enroll in the SBP when it was established in 1972 and there is no evidence to show he attempted to enroll during a subsequent Open...
ARMY | BCMR | CY2014 | 20140017621
There is no evidence in the FSM's military records and the applicant provides no evidence which shows the FSM participated in the SBP or the Retired Serviceman's Family Protection Plan (RSFPP). The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Since there is no evidence of record which shows the FSM made an SBP election prior to his death, and the evidence of record shows he had opportunities...
ARMY | BCMR | CY2009 | 20090001548
The applicant, the former spouse of a deceased former service member (FSM), requests that she be provided an annuity under the FSMs Survivor Benefit Plan (SBP). Title 10, U.S. Code, section 1450(f)(3)(A), permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce. As a result, the Board recommends that all Department of the Army records of...
ARMY | BCMR | CY2008 | 20080014581
The DA Form 1041 available indicates the FSM elected not to provide an annuity for his dependents. Although the FSM retired in 1968, there is no evidence to show he enrolled in the SBP when it was established in 1972. Since there is no evidence of record which shows the FSM made an SBP election prior to his death, and evidence of record shows he had opportunities to enroll in the SBP during Open Seasons, there is no basis for granting the applicant's request.
ARMY | BCMR | CY2003 | 2003090124C070212
The applicant requests correction of military records as stated in the application to the Board and as restated herein. DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded: The evidence of record shows the FSM retired on 1 August 1969, prior to establishment of the SBP, and was married at that time.
ARMY | BCMR | CY2011 | 20110005547
IN THE CASE OF: BOARD DATE: 13 October 2011 DOCKET NUMBER: AR20110005547 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant states she married the FSM after he retired from the service. There is no indication the FSM elected to participate in the USCOA, the RSFPP, or the SBP, either at the time of or immediately following his retirement or during any of the later open enrollment seasons.
ARMY | BCMR | CY2001 | 2001065549C070421
APPLICANT REQUESTS: In effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP). EVIDENCE OF RECORD : The FSM military records show: He retired before the SBP was established; however, there is no evidence to show he enrolled in either of the two previous survivor benefit programs available to him.
ARMY | BCMR | CY2009 | 20090003913
Item 10 (Election under Retired Serviceman's Family Protection Plan [RSFPP]) of the DA Form 2339 shows that the applicant did not elect coverage under the RSFPP. Public Law 90-485, enacted on 13 August 1968, established the requirement that a Service Member must make an election for the RSFPP before completing 19 years of active duty service. Public Law 93-155, enacted on 16 November 1973, extended that SBP Open Season from 12 to 18 months effective 21 September 1972 to 20 March 1974.
ARMY | BCMR | CY2007 | 20070013961
Director Analyst The following members, a quorum, were present: M Chairperson M Member M Member The Board considered the following evidence: Exhibit A - Application for correction of military records. At this time but before 1 September 1969, a retired member who was participating in the RSFPP without inclusion of the former option 4 could have elected to have that option included in his election. The FSM retired in November 1971.
ARMY | BCMR | CY2004 | 20040005772C070208
Public Law 94-496, effective 1 October 1976 provided for the suspension of spouse costs if marriage ends in death or divorce. Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members under insurable interest coverage provisions. Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members.