IN THE CASE OF:
BOARD DATE: 25 OCTOBER 2012
DOCKET NUMBER: AR20110023313
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 the record of her deceased husband, a former service member, be corrected to reverse his waiver of military retired pay and allowances, including the Survivor Benefit Plan (SBP) coverage, in order to combine his military service with his civilian service with the U.S. Postal Service for retirement under the Federal Employees Retirement System (FERS).
2. The applicant states that in July 2006, her husband was told it would be in his best interest to waive his military retired pay to combine his military service with his civilian service for FERS retirement purposes. She indicates she has since been informed by the Office of Personnel Management (OPM) that it would be beneficial to reverse this waiver to receive a higher SBP annuity.
3. The applicant provides the following documents in support of her request:
* OPM letter, dated 8 July 2011
* OF 3107-1 (Certified Summary of Federal Service), dated 11 July 2006
* Waiver of military retired pay, dated 11 July 2006
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 record shows the FSM was inducted into the Army of the United States on 18 August 1966. He served on active duty for 2 years and 5 months until
17 January 1969, at which time he was honorably retired and placed on the Temporary Disability Retired List (TDRL).
3. On 27 November 1971, the FSM and applicant married in Nebraska.
4. On 31 October 1972, the FSM was removed from the TDRL and permanently retired by reason of disability with a 40 percent disability rating.
5. The FSM's record is void of an SBP election form. The applicant provides a Retiree Account Statement, dated 2 May 2007, which shows a $16.50 SBP premium payment was being deducted from the FSM's military retired pay for Spouse Only coverage as of that date.
6. On 11 July 2006, the applicant requested that his military retired pay be discontinued in order to allow credit of his military service for a Federal Civil Service retirement annuity.
7. On 17 January 2011, the applicant notified DFAS that the FSM died on
25 June 2010 and requested an SBP annuity.
8. On 15 February 2011, DFAS informed the applicant that the FSM had waived retired pay for civil service pay and that no military SBP annuity was payable and she would receive whatever survivor annuity was due based on civilian service.
9. Title 10, U. S. Code, section 1450a(d) states, in effect, that if a retiree waives his military retired pay for the purpose of receiving civil service retired pay, an SBP annuity shall not be payable unless that retiree notified OPM that he did not desire any spouse surviving him to receive a civil service annuity.
DISCUSSION AND CONCLUSIONS:
1. The applicants request for a military SBP annuity has been carefully considered. However, by law, once a member waives military retired pay for the purpose of receiving civil service retired pay, an SBP annuity shall not be paid if there is a civil service annuity being paid. The law provides no provisions to waive the civil service annuity in favor of a military SBP annuity.
2. The FSM made a conscious decision to waive his military retired pay in order to allow credit of his military service for a Civil Service retirement annuity, and it appears he drew Civil Service retired pay for about 4 years. There is no basis in equity to correct his records to reverse that decision.
3. In view of the foregoing, there is an insufficient evidentiary basis to support granting 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 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) AR20110023313
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ABCMR Record of Proceedings (cont) AR20110023313
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