IN THE CASE OF:	  

		BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130005333 


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 late husband, a former service member (FSM), be corrected to show that he elected to participate in the Survivor Benefit Plan (SBP).

2.  The applicant states that when he retired he was mentally incapable of making an informed decision.  He received mental health treatment at the Fort Polk, Louisiana hospital and was diagnosed with acute paranoid schizophrenia.

3.  The applicant provides an essentially illegible copy of a form entitled, "In the Matter of Mental Illness" and a copy of pages from his DA Form(s) 20 (Enlisted Qualification Record).

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.  Item 31 (Retired Serviceman's Family Protection Plan) of his DA Form 3713 (Data for Retired Pay), dated 23 November 1971, is blank.

3.  On 7 December 1971, the FSM was medically retired as a staff sergeant due to combat incurred injuries to his right leg.  He had 8 years, 3 months, and 25 days of active duty service.

4.  There is no available evidence of record of any mental health problem suffered by the FSM during his military service.  The lone document touching on the FSM's mental condition is of such poor quality that it cannot be read but appears to be dated in 1973.

5.  A death certificate shows he died of congestive heart failure in December 1979.

6.  Public Law 87-381, enacted 4 October 1961, established the RSFPP.  An RSFPP election could be made by an active member prior to the completion of 18 years of active service or, if retired for disability prior to completion of 18 years of active service, at the time of retirement.  

7.  Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan 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.  It declared a 12-month Open Season for those members who retired prior to enactment of the law, later extended from 12 to 18 months (21 September 1972 through 20 March 1974).

8.  The April-June 1972 issue of the Retired Army Bulletin, Army Echoes, included information on legislation which was then before Congress to replace the RSFPP.  It also stated that a separate issue of the Retired Army Bulletin would be published within a few weeks after the legislation became law.  Retirees were encouraged to update their addresses with The Adjutant General's Office and the Retired Pay Division, particularly if checks were being mailed to a bank.

9.  Department of the Army Message, dated 22 September 1972, announced that Public Law 92-425, establishing the SBP, was enacted into law on 21 September 1972.  Persons who for urgent personal or medical reasons needed to elect immediately, or who could not obtain a copy of the election form, could make a 


simple written statement of their election and forward it by registered mail to the Retired Pay Division.  Information to be contained in the statement and method of its preparation were included. 

10.  To ensure that retirees were informed of the plan and provided means to timely make a desired election, they were furnished a special October 1972 issue of the Retired Army Bulletin containing information on the plan.  Beginning in October 1972, the Finance and Accounting Center mailed each retiree election forms and a letter of instructions.  The Retired Army Bulletin, issued bi-monthly thereafter, continued with special items on the SBP.  In July 1973 and, again, in November 1973, the Retired Pay Division sent each retiree who had not elected to participate in the SBP a card with notice of the deadline for election and instructions on how forms could be obtained for submission.  Enactment of the SBP received national news media coverage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant maintains that she should be authorized the SBP because the FSM was incapable of making an informed decision due to mental illness.

2.  However, the applicant provided insufficient evidence that the FSM had a disabling mental illness such that he was incapable of managing his own affairs.

3.  Accordingly, there is an insufficient basis upon which to conclude that the FSM's failure to elect into SBP, which was a well-publicized option for recent retirees, was anything other than a conscious decision on the FSM's part.

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)                                         AR20130005333





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ABCMR Record of Proceedings (cont)                                         AR20130005333



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