IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130004639 


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 correction of her husband's record to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage.

2.  The applicant states:

	a.  As the surviving spouse and sole beneficiary, she believes her husband intended for her to receive his retirement pension.

	b.  At the time of their marriage in 1985 she was on active duty and her husband, who was outprocessing to a medical retirement status, did not go back and update his SBP.  He had spent nearly a year in the hospital following an accident which involved significant head and left leg trauma. 

	c.  Officially moving from temporary to permanent retirement status in May 1985, he soon began to receive his retired Army pension.  Over the years he received his retired Army and Department of Veterans Affairs (VA) benefits and received regular statements.  

	d.  In July 2011, they realized his beneficiary information was not up to date.  The information was provided, including birth certificates and marriage license, and subsequent retiree account statements were correctly changed according to her husband's wishes.  This indicated that she would receive 100% of his retirement pension.  Her husband called the Defense Finance and Accounting Service (DFAS) to confirm this fact.
	e.  When her husband was unexpectedly diagnosed with a malignant brain tumor in July 2012 and encouraged to get his affairs in order, he did not hesitate to believe that this plan was in place should he pass away, which he did 
4 months later in November 2012.  He was even approved for immediate Social Security compassionate disability pay, which he did not live long enough to receive.

	f.  Before they met and were married, her husband listed his father as his sole 100% beneficiary on his SBP upon his medical retirement.     

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Physical disability orders
* DA Form 199 (Physical Evaluation Board Proceedings)
* DA Form 4240 (Data for Payment of Retired Army Personnel)
* DFAS retiree account statement
* Birth certificates
* Marriage license
* Death certificate
* Social Security Administration notice of award/disability
* VA benefit verification letter
* Medical records 

 CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 15 July 1980 and served as a cannon crewman.

2.  His DA Form 4240, dated 3 April 1984, shows he declined SBP coverage.  This form shows he was not married and did not have any dependent children.  This form also shows his father was the designated beneficiary for unpaid retired pay or gratuity pay.
  
3.  He retired on 29 May 1984 and was placed on the Temporary Disability Retired List (TDRL) the following day.  He was removed from the TDRL on 
23 July 1985.

4.  He married the applicant on 6 September 1985.   

5.  The applicant provides a copy of the FSM's DFAS retiree account statement, dated 2 May 2011, which shows:

* no SBP election was reflected on his account
* the applicant was designated as his arrears of pay beneficiary 

6.  The FSM died on 18 November 2012.  

7.  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.

8.  Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP.  Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child.  

9.  Every issue of 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, contains the information, “Remember:  You are responsible for updating your retired pay file information at DFAS-CL…within one year of the event if you marry, remarry…and need to make or update an SBP election.”

10.  Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991– 30 September 1992.  

11.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993.

12.  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.

13.  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 FSM elected not to participate in the SBP on 3 April 1984.

2.  He married in September 1985 and he had 1 year from his date of marriage to enroll in the SBP for spouse coverage, but there is no evidence to show he enrolled within the given time frame.  

3.  He also 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)                                         AR20130004639



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130004639



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1