BOARD DATE: 10 October 2013
DOCKET NUMBER: AR20130001924
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 correction of the records of her late husband, a former service member (FSM), to show she is entitled to Survivor Benefit Plan (SBP) benefits.
2. The applicant states, in effect, she was misinformed/misdirected concerning how to go about enrolling/collecting SBP benefits.
3. The applicant provides copies of:
* Certificate of Marriage showing the applicant and the FSM were married on 25 September 1976
* FSM's Certificate of Death, dated 22 December 1983
* DD Form 1300 (Report of Casualty), dated 14 June 1984
* FSM's DD Form 214 (Report of Transfer or Discharge), dated
31 December 1969
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 applicant's 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 applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSM retired from the Regular Army in the rank of sergeant first class (SFC)/E-7 on 31 December 1969.
3. A DA Form 3054 (Election of Amount, Beneficiary Designation and Settlement Options for Serviceman's Group Life Insurance) shows the FSM listed his brother and mother as equal beneficiaries and a second brother as a contingent beneficiary.
4. A Standard Form 88 (Report of Medical Examination), dated 26 November 1969, shows that at the time of his retirement physical examination he listed his mother as next-of-kin.
5. There is no available evidence that the FSM was married at the time of retirement or that he later elected to participate in the SBP.
6. Public Law 92-425, enacted 21 September 1972, 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. It declared a 12-month Open Season for those members who retired prior to enactment of the law.
DISCUSSION AND CONCLUSIONS:
1. The available evidence does not show the FSM was married at the time of retirement or that he made an SBP election at any time. Neither was there any statutory or regulatory requirement that he do so.
2. Regrettably, there is insufficient evidence that would warrant granting the relief requested.
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) AR20130012116
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130001924
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