BOARD DATE:	 25 October 2012 

		DOCKET NUMBER:  AR20120016579 


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 records of her (now deceased) husband, a former service member (FSM), be corrected to show he:

* elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage
* was promoted to sergeant major (SGM)

2.  The applicant states:

* When she and the FSM applied for TRICARE coverage, they inquired about the SBP
* They were advised they had to wait for one year from the date of marriage before the FSM could file for an annuity for her
* She does not believe they were advised and/or misunderstood that he had to file the request for an annuity before their one-year anniversary and that it would be effective on the one-year anniversary
* She believes her husband was not afforded the opportunity to apply in a timely manner for the SBP
* Her husband discussed with her that he should have been given the rank of SGM
* He previously wrote a letter to the Sergeant Major’s branch requesting he be considered for promotion to SGM
* She believes there must have been a typographical error in the date the letter was actually written
* When she reviewed the letter, he told her he was waiting for the evaluation report for the period August 1991 through December 1991
* She believes the letter was written on 29 February 1992 which would warrant retroactive promotion 
* She believes her husband’s records were burned in a fire in St. Louis storage facility or may have been lost

3.  The applicant provides:

* DA Form 3713 (Data for Retired Pay)
* Medical letter
* Marriage certificate
* DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) for the period December 1991 through February 1992
* Three certificates for awards of the Army Commendation Medal and Army Achievement Medal
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 February 1992
* DD Form 215 (Correction to DD Form 214)
* Durable Power of attorney
* Letter, dated 29 February 1991
* 2011 Form 1099-R (Distribution from Pensions, Annuities, Retirement, or Profit Sharing Plans, IRAs, Insurance Contracts, etc)
* December 2011 and February 2012 Retiree Account Statements
* Orders C-08-230773

CONSIDERATION OF EVIDENCE:

1.  The FSM’s records show he was born on 11 September 1932.  

2.  The FSM's records also show, after having had prior service, he served in the U.S. Air Force from 18 February 1956 to 4 January 1960.  His records show he married Ann in June 1955 and they had two children, Joyce (born in 1957) and William (born 1958).  He and Ann were divorced in or about August 1971.  

3.  The FSM enlisted in the U.S. Army Reserve on 29 August 1979.  He served through multiple reenlistments and held military occupational specialties 71L (Administrative Specialist) and 91B (Medical Specialist).  He was promoted to master sergeant (MSG)/E-8 and the effective date of this pay grade is shown as 21 February 1986.  

4.  He was awarded two awards of the Army Achievement Medal for service from 8 April to 29 July 1991 and 21 August to 5 December 1991 and the Army Commendation Medal for service from 20 August to 5 December 1991.  

5.  On 12 June 1991, the U.S. Army Reserve Personnel Center, St. Louis, MO, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him he had completed the required years of service and would be eligible for retired pay upon application at age 60.

6.  He entered active duty in support of Operations Desert Shield/Storm on 11 August 1991 and he was honorably released from active duty on 5 February 1992 after having served in Southwest Asia from 19 August to 7 December 1991. 

7.  The applicant submitted an unsigned letter, that appears to have been authored by the FSM on 29 February 1991 and addressed to the President, Sergeant Majors Promotion Board, St. Louis, MO, wherein he states that his official military personnel file had been lost and he was still awaiting his NCOER for the period August through December 1991 from his Southwest Asia tour.  He added that since his records were misplaced, he was enclosing a reconstructed record together with certificates showing his awards.  He requested consideration for promotion. 

8.  The applicant submitted a copy of the FSM’s NCOER for the period December 1991 through February 1992 during his deployment in support of Operations Desert Shield/Storm. 

9.  On 15 July 1992, the FSM submitted a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated he was married to Tonia and he had no dependent children.  He elected SBP coverage for "spouse" based on a reduced amount of $300.00.  Although he authenticated this form:

* It is neither signed nor dated by a witness
* The spouse signature/information block is blank.  A spouse signature was required when a married Soldier elected reduced coverage or declined coverage for spouse
* There is no indication this form was forwarded to the Defense Finance and Accounting Service

10.  There is no information in his service record regarding his marriage to or divorce from Tonia. 


11.  On 7 August 1992, the U.S. Army Reserve Personnel Center, St. Louis, MO, published Orders P-08-303535 ordering his retirement and placement on the Retired List in his retired rank of MSG/E-8 effective 11 September 1992, his 60th birthday. 

12.  On 24 August 1992, the U.S. Army Reserve Personnel Command, St. Louis, MO, published Orders C-08-230773, releasing him from the USAR Control Group (Reinforcement) and transferring him to the Retired Reserve effective 30 September 1992. 

13.  On 4 May 1993, a DA Form 3713 was prepared in what appears to be a re-computation of his retirement points that were not verified when he was placed on the Retired List.  

14.  The applicant submitted a marriage certificate showing she and the FSM were married on 21 September 2010.  

15.  There is no indication the FSM notified officials at the Defense Finance and Accounting Service of his marriage or that he made an SBP election within one year of his marriage.

16.  The applicant submitted a medical document, dated 7 September 2012, that shows the FSM is terminally ill.  A phone call, dated 11 September 2012, between a staff member of the Army Review Boards Agency and the applicant revealed the FSM died on 10 September 2012. 

17.  The applicant provides the FSM's December 2011 and February 2012 Retiree Account Statements.  Both statements show the entry "No SBP Election is Reflected on Your Account."  

18.  The FSM's pay records show an initial election of spouse coverage effective 1 October 1992, and no beneficiary.  The beneficiary for arrears of pay is listed as the applicant, effective 15 June 2011.  

19.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members 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.  It

20.  Public Law 94-496, enacted 14 October 1976 but effective 1 October 1976, provided that spouse costs would be suspended if marriage ends in death or divorce.  The waiting period for a new spouse's eligibility was reduced to 1 year following post-retirement marriage.  
21.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provided less than maximum spouse coverage.  

22.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, prescribed policies and procedures pertaining to classification, promotions, and reductions of USAR Soldiers.  Section IV, paragraph 3-28 states promotion of USAR enlisted personnel to grade E-7 through E-9, appointments, grade reductions, and grade restoration were announced in orders.  Selection and promotion of senior enlisted grades is centralized at the major command headquarters level.  Centralized boards review personnel records of Soldiers in the zone of consideration and select the best qualified Soldiers to fill required positions and the names are placed on a selection list.  As position vacancies occur, Soldiers are promoted off a list in sequence by MOS and geographical location. 

DISCUSSION AND CONCLUSIONS:

1.  With respect to the SBP election:

	a.  According to the DA Form 4240, dated 15 July 1992, and email traffic from the Retirement Services Office, it appears the FSM attempted to elect reduced spouse SBP at the time he reached age 60 and applied for his non-regular retired pay. 

	b.  While the FSM’s signature was not properly witnessed, the form was accepted and processed by Finance officials and he began receiving his retired pay.  Though the FSM failed to obtain the concurrence of his then spouse to his election of reduced SBP coverage, his failure does not invalidate the form itself in any way.  Rather, his SBP coverage automatically defaulted to full spouse coverage by operation of law.  Accordingly, when the FSM divorced, his spouse coverage went into suspension.  

	c.  The FSM married the applicant on 21 September 2010.  The FSM did not have to make a new SBP election.  He died in September 2012.  She became eligible to receive an annuity effective on their one year anniversary.  The applicant is therefore entitled to relief as to the portion of her application involving SBP and should be paid an annuity beginning on the day after her husband’s death minus any premiums that would have been due had he notified DFAS of his remarriage.  

2.  With respect to promotion to SGM: 

	a.  The evidence of record shows that at the time of retirement, on 11 September 1992, the FSM held the rank of MSG/E-8.  His record is void of any promotion orders to SGM/E-9.  Promotions of enlisted personnel to grades E-7 through E-9 were announced in orders.  In the absence of such orders and/or the authority for this promotion, there is insufficient evidence to grant the applicant the requested relief.  

	b.  Promotion to SGM is a centralized process, conducted at the USARC headquarters level.  A SGM promotion board considers all MSG/E-8s eligible for promotion, but it may only select a number within established selection constraints.  Limits were established regarding the number of eligible MSG/E-8s to be selected.  The selection process is an extremely competitive process based on the "whole Soldier" concept.  It is an unavoidable fact that some MSGs considered for promotion will not be selected.  There are always more outstanding Soldiers who are fully qualified to perform duty at the next higher grade who are not selected because of a mandated selection rate.

	c.  It is unfortunate the FSM was not selected for promotion to SGM; however, it is a well-known fact that not everyone who is eligible for promotion during a given selection board is selected because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion boards are tasked with choosing the best-qualified Soldiers to meet the needs of the Army at the time.  

	d.  Regretfully, there is nothing in the records that supports the FSM's promotion to SGM.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X__  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* showing the FSM notified DFAS of his remarriage on 21 September 2010 and resumed SBP "spouse" coverage
* showing his request was timely received and processed by the appropriate DFAS office
* paying the applicant the SBP annuity retroactive to the day after the FSM's death, less any premiums due from 21 September 2010 (date of marriage) to 10 September 2012 (date of death)

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the FSM’s promotion.



      _______ _ 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)                                         AR20120016579



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ABCMR Record of Proceedings (cont)                                         AR20120016579



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