IN THE CASE OF:	  

		BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130005999 


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 payment of a Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM). 

2.  The applicant states she did not know the FSM did not provide SBP benefits or insurance for her until after his death.  She adds that he told her he provided the benefits.  He did not read or speak English well enough to understand his Retiree Account Statement which indicated "No SBP Election."  He was always sick.  

3.  The applicant provides:

* Statement in a foreign language
* FSM's Retirement Certificate
* DD Form 214 (Report of Separation from the Armed Forces of the United States)
* Foreign certificate of marriage
* Certificate of death
* FSM's U.S. Passport
* FSM's Retiree Identification Card
* FSM's Driver's License
* FSM's Department of Veterans Affairs card
* Certificate of Service
* VA Certificate of Eligibility
* U.S. Individual Income Tax Return (2008)

CONSIDERATION OF EVIDENCE:

1.  The FSM's records show he was inducted into the Army of the United States on 28 November 1952.  He served in a variety of assignments and he attained the rank/grade of private first class/E-3. 

2.  He was honorably retired on 31 January 1955 and placed on the temporary disability retired list (TDRL) on 1 February 1955 by reason of temporary disability. His DD Form 214 shows he completed 2 years, 2 months, and 3 days of active service. 

3.  He was removed from the TDRL on 28 February 1956 and placed on the permanent retired list of the Army with a disability rating of 50 percent effective 29 February 1956. 

4.  The FSM died on 13 August 2010.  His death certificate states he was married to the applicant at the time of death. 

5.  His service record does not show that he made an SBP election.  Furthermore, a review of the FSM’s pay account by Defense Finance and Accounting Service officials did not yield an SBP election or premium payments. 

6.  Public Law 87-381, enacted 4 October 1961, established the Retired Serviceman’s Family Protection Plan (RSFPP).  The Uniformed Services Contingency Option Act (USCOA) of 1953 automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA.

7.  Public Law 92-425, enacted 21 September 1972, repealed the RSFPP 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.  An election, once made, was irrevocable except in certain circumstances.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.  Public Law 93-155, enacted 
16 November 1973, extended that Open Season from 12 to 18 months
(21 September 1972 – 20 March 1974).

8.  Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

9.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999-29 February 2000.  The retiree must have paid monthly premiums starting on the date of enrollment and a one-time, lump sum enrollment premium.  Extensive publicity was given in Army Echoes.

10.  Public Law 108-375 established an Open Season that began on 1 October 2005 and lasted 1 year.  Those who took advantage of the open season were required to participate for at least 2 years from the date of making such an election in order to qualify their survivors for benefits.  If the retiree died before the end of this 2-year period, amounts deducted from retired pay to effectuate the benefits resulting from the open season would be returned to the designated survivor.  Premiums charged were calculated based on the total amount of the premium, plus interest, by which the members’ retired pay would have been reduced if they had elected to participate in the SBP at the first opportunity that they had been afforded.  One-time, buy-in enrollment premiums were due at the time the retiree filed an open enrollment election, although the retiree could elect to defer any portion of the open enrollment premium and have the amount deducted from retired pay in 24 equal monthly installments.

DISCUSSION AND CONCLUSIONS:

1.  The FSM served in the Regular Army from 28 November 1952 to 31 January 1955.  He was permanently retired on 29 February 1956 by reason of disability.  There is no evidence he made an election in the 1953 USCOA program or the 1961 RSFPP.  

2.  The SBP was established by Public Law 92-425, enacted 21September 1972. There is no evidence the FSM elected to participate in the SBP when this program was announced in 1972.  Likewise, there is no evidence the FSM elected to participate in the SBP during any of the multiple Open Seasons authorized by Congress over the years. 

3.  The decision to participate or decline participation in the SBP is a personal decision that is made by the military member and his/her family.  In the absence of an SBP election form or other evidence that the FSM paid into this program, there is insufficient evidence to grant the applicant the requested relief. 









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)                                         AR20130005999



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ABCMR Record of Proceedings (cont)                                         AR20130005999



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