IN THE CASE OF:
BOARD DATE: 22 November 2011
DOCKET NUMBER: AR20110010079
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:
* she married the FSM on 1 January 1974
* he was disabled in 1980
* she was married to him when he died and as a result she believes she is entitled to his retirement pay
* she completed the FSM's application for retirement pay in 1980 or 1982 due to his illness
3. She provides:
* DD Form 214 (Report of Separation from Active Duty)
* marriage license
* certificate of death
* retirement orders
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 applicant and the FSM were married on 28 December 1973.
3. The FSMs military service records show that he initially enlisted in the Regular Army on 24 July 1973.
4. He was placed on the Temporary Disability Retired List (TDRL) on 26 July 1980.
5. His record contains a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 1 July 1980, which shows the following entries in:
a. Part IV - Survivor Benefit Plan Election:
(1) Item 13, Are you married? - Yes
(2) Item 14, Do you have dependent children? - Yes
(3) Item 15, Check the following to indicate the type of coverage you desire:
Block c. Dependent children only
b. Part IX (SBP Certificates) is blank.
6. His record contains a memorandum from Brooke Army Medical Center, dated 1 July 1980, to the applicant which states that retiring service members may voluntarily participate in the SBP program and if a member chooses other than maximum spouse coverage, the law requires that the spouse be notified. The applicant was informed that the FSM elected on 1 July 1980 to provide an annuity for dependent children only. She was asked to sign and return the memorandum regarding her understanding of the memorandum. There is no evidence that she returned the memorandum.
7. On 28 February 1982, the FSM was removed from the TDRL and was permanently retired.
8. The FSM died on 4 September 1992.
9. 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 dependents.
10. Public Law 97-35 enacted 13 August 1981, announced a one-year open enrollment period (1 October 1981 - 30 September 1982) for members entitled to retired pay on or before 13 August 1981 giving members the option to enroll or increase previously elected coverage and to add spouse to child only coverage (couldnt add child to spouse coverage) providing the member lived for two years before beneficiary(ies) became eligible.
11. Public Law 99-145, the SBP, effective 1 March 1986, established that a spouse's written concurrence was required for retiring member's election that provides less than maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the FSM was retired on 26 July 1980. At that time, he completed a DA Form 4240 that indicated he desired to enroll in SBP for child coverage only. The applicant was notified of his election.
2. There is no evidence that shows the FSM later changed his election in the program during a subsequent Open Season. When the FSM was on the TDRL in 1980 and enrolled in the SBP program there were no laws that required the spouse to concur or non-concur with the SBP election in writing. Therefore, there is no basis in law or in equity to provide the applicant an SBP annuity.
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) AR20110010079
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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