IN THE CASE OF:
BOARD DATE: 23 July 2013
DOCKET NUMBER: AR20120020598
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 his military records be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) prior to retirement.
2. The applicant states:
* she is 84 years old and was married to the FSM during the periods the accrual of retirement benefits occurred
* she has exhausted her administrative remedies with the Defense Finance and Accounting Service (DFAS)
* to deny her the SBP benefits the FSM intended to be provided for her would be unfair and result in a gross injustice
* she believes the intent of Congress is to be fair and equitable, avoid harshness of former rules, and prevent the forfeiture of military retirement benefits to spouses of fallen service members
* the changes in the SBP throughout the years shows a tendency to favor and support the distribution of retirement benefits and not the forfeiture of the same
3. The applicant provides:
* marriage certificate
* FSM's death certificate
* Denial letter from DFAS
CONSIDERATION OF EVIDENCE:
1. The FSM married the applicant on 24 July 1954. He retired on 31 July 1968 in the rank of sergeant first class after completing over 20 years of active service.
2. There is no evidence of record which shows the FSM elected SBP prior to his retirement.
3. The FSM died on 14 July 2012.
4. The applicant provided a letter, dated 28 August 2012, from DFAS which states:
* a review of the FSM's retired pay account reflects he did not participate in the SBP or the Retired Serviceman's Family Protection Plan (RSFPP).
* due to the fact he did not participate in the SBP or RSFPP plans, no annuity is payable
5. Public Law 87-381, enacted 4 October 1961, established the RSFPP. The RSFPP covered only persons dependent on the member at the time of retirement.
6. Public Law 92-425, the SBP, enacted 21 September 1972, repealed the RSFPP and established the SBP.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. Upon creation of the SBP, an 18-month Open Season was conducted from 21 September 1972 to 20 March 1974, in which all pre-1972 retirees were given the option to enroll. The Department of the Army contacted all previously retired service members and explained to them the benefits and procedures provided by the SBP. This was done on several occasions. First, a bulletin was sent out describing SBP. The bulletin was followed by a circular and would extend the benefits of SBP to those already retired. A final notice provided a box to check on a postal card indicating the retirees intention.
7. Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 30 September 1982.
8. Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 30 September 1992.
9. Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993.
10. Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 29 February 2000. Extensive publicity was given 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.
11. 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 contentions were carefully considered. However, there is no evidence to show the FSM elected to participate in the RSFPP prior to retirement.
2. Although the FSM retired in 1968, there is no evidence to show he enrolled in the SBP when it was established in 1972. There is no evidence of record which shows the FSM made an SBP election prior to death. He had opportunities to enroll in the SBP during Open Seasons, but there is no evidence to show that he enrolled. Regrettably, there is no basis for granting the applicant's request.
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) AR20120020598
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ABCMR Record of Proceedings (cont) AR20120020598
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