IN THE CASE OF:
BOARD DATE: 13 October 2011
DOCKET NUMBER: AR20110005547
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, in effect, entitlement to the Survivor Benefit Plan (SBP) based on the death of her husband, a former service member (FSM).
2. The applicant states she married the FSM after he retired from the service. She states they didn't know the FSM had to update his SBP election coverage after their marriage. Since the FSM is now deceased, she would like to know if she has any SBP entitlement.
3. The applicant provides their marriage certificate and the FSM's death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 22 November 1934. He was inducted into the Army of the United States on 5 October 1953. On 20 January 1954, he was discharged for the purpose of enlisting in the Regular Army. On 21 January 1954, he enlisted in the Regular Army. He completed training and was awarded military occupational specialty 760 (Supply Clerk).
2. On 30 September 1955, the FSM was honorably retired and placed on the Temporary Disability Retired List (TDRL). On 1 September 1960, the FSM was removed from the TDRL and permanently retired for disability.
3. On 5 August 2005, the FSM and the applicant were married.
4. On 10 February 2011, the FSM died at the age of 76.
5. Although the FSM was married, though apparently pending divorce, and had at least two dependent children as of June 1960, there is no indication he elected to participate in the Uniformed Services Contingency Option Act (USCOA), the Retired Servicemans Family Protective Plan (RSFPP), or the SBP, either at the time of or immediately following his retirement or during any of the later open enrollment seasons. Additionally, there is no indication the FSM paid premiums for any of the annuity programs at any time while he was receiving retired pay.
6. Public Law 83-239, enacted 8 August 1953, established the USCOA which provided an annuity upon a service member's death to those persons dependent on the member at the time of his retirement equal to 1/2, 1/4, or 1/8 of the member's retired pay. Unless option 4 was elected along with either option 1 (annuity payable to or on behalf of widow), option 2 (annuity payable to or on behalf of surviving child or children) or option 3 (annuity payable to or on behalf of widow and surviving child or children), premiums continued to be paid after the death of the beneficiary.
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 USFPP 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. It declared a 12-month open season for those members who retired prior to enactment of the law.
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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for SBP benefits based on the death of her husband, an FSM, was carefully considered; however, there is insufficient evidence to support her request.
2. 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. Additionally, there is no evidence the FSM paid premiums for any of the annuity programs at any time while he was receiving retired pay. In view of the foregoing evidence, the applicant is not entitled to the 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 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) AR20110012544
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ABCMR Record of Proceedings (cont) AR20110005547
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