IN THE CASE OF:
BOARD DATE: 30 August 2012
DOCKET NUMBER: AR20120000437
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 spouse of a deceased former service member (FSM), requests correction of the FSM's record to show he elected spouse-only Survivor Benefit Plan (SBP) coverage based on the full amount of his retired pay.
2. She states she understands she must pay for SBP coverage out of the amount she would receive. She further states when the SBP started, the FSM had no eligible beneficiaries. They were married on 17 May 1975, and he failed to request SBP coverage before the anniversary date of their marriage.
3. She provides a Certificate of Death, a Marriage Certificate, and the FSM's DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 1 July 1952.
CONSIDERATION OF EVIDENCE:
1. On 20 September 1966, while serving in the Regular Army, the FSM completed a DA Form 2339 (Application for Voluntary Retirement). Item 10 (Election Under Retired Serviceman's Family Protection Plan (RSFPP)) shows he did not elect RSFPP coverage.
2. On 30 November 1966, the FSM retired after completing 20 years, 7 months, and 8 days of total active service. The DD Form 214 issued at that time shows he was married when he retired.
3. On 7 February 2012, during the processing of this case, the Defense Finance and Accounting Service confirmed there was no SBP election form on file for the FSM.
4. The applicant provides:
* a Marriage Certificate showing she married the FSM on 17 May 1975
* a Certificate of Death showing the FSM died on 9 November 2011 and was married to the applicant at the time
5. Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and established the SBP.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. An election, once made, was irrevocable except in certain circumstances. A retired member could enroll for coverage of a new spouse gained through post-retirement marriage within 1 year of marriage. The law also declared a 12-month open season for those members who retired prior to enactment of the law. Public Law 93-155, enacted 16 November 1973, extended that open season from 12 to 18 months (21 September 1972 20 March 1974).
6. Subsequent open seasons were given extensive publicity 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. The laws authorizing the open seasons and the periods of the open seasons are:
* Public Law 97-35 1 October 1981 through 30 September 1982
* Public Law 98-94 23 September 1983 through 24 September 1984
* Public Law 101-189 1 October 1991 (deferred to 1 April 1992) through 30 September 1992
* Public Law 105-261 1 March 1999 29 February 2000
* National Defense Authorization Act for Fiscal Year 2005 1 October 2005 to 30 September 2006
DISCUSSION AND CONCLUSIONS:
1. The available evidence does not support the applicant's request for correction of the FSM's record to show he elected spouse-only SBP coverage based on the full amount of his retired pay.
2. After the FSM's post-retirement marriage to the applicant, he had six opportunities to enroll in the SBP: within 1 year of their marriage and during five open seasons. The open seasons were publicized in Army Echoes, which he would have received as a retiree. With information on the SBP and open seasons readily available, it must be presumed he was aware of the SBP and his eligibility to enroll in the program for spouse-only coverage. He did not do so, and there is no compelling evidence that would serve as a basis for correcting his record to show he did so at this late date.
3. Notwithstanding the applicant's willingness to pay SBP premiums retroactively, in view of the foregoing there is no basis for 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.
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