IN THE CASE OF:

		BOARD DATE:  4 February 2014

		DOCKET NUMBER:  AR20130008711 


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, in effect, reconsideration of her earlier request for:

* entitlement to her father’s Survivor Benefit Plan (SBP) annuity and/or the Reserve Component SBP (RCSBP) annuity
* transfer of her father’s educational benefits to her
* payment of any Department of Veterans Affairs (VA) pension funds and/or life insurance that is due
* payment of funeral expenses that were not previously paid to her

2.  The applicant states that:

	a.  Her father's medical records were located in Neosho, Missouri.  In that record her mother's name is crossed out (she was deceased) and the applicant's name is listed as next of kin.   

	b.  She has never received her father's SBP annuity.  A paper audit of his pay will show he paid his premiums each month and transferred the benefits to the applicant on 2 July 1993 at Scott Air Force Base. 

3.  The applicant provides copies of:

* Department of Veterans Affairs (VA) Form 10-10 (Application for Medical Benefits)
* her DD Form 1173 (Uniformed Services Identification Card) and Missouri Driver's License
* her 7 December 2012 letter to Defense Finance and Accounting Service (DFAS)
* ABCMR Record of Proceedings (ROP) AR20120009417 with enclosures
* documents pertaining to her medical condition 
* her college transcript, dated 3 May 2012
* a photograph of her father's headstone
* correspondence with the VA relating to her claims 
* documents relating to her as a victim of identity theft
* Social Security Administration documents

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120009417, on 18 December 2012.

2.  The applicant provides as new evidence:

	a.  A VA Form 10-10, dated 21 September 1993, which shows the FSM's spouse's name was lined through as first next of kin and the applicant's name handwritten on the form.  This form was available for review with the original application.

	b.  A copy of ABCMR ROP AR20120009417 with her annotations.

	c.  Documents pertaining to her medical condition and her as a victim of identity theft.

3.  The deceased former service member (FSM) was honorably retired from active duty on 29 February 1968 and was placed on the Retired List in the rank of staff sergeant effective 1 March 1968.

4.  His record is void of any documentation that shows he ever enrolled in the Retired Servicemen's Family Protection Plan (RSFPP) or the SBP.

5.  He died on 23 September 1993.  His certificate of death, dated 27 September 1993, shows that at the time of his death he was a widower.

6.  An email, dated 20 November 2012, stated DFAS had no records on file pertaining to the FSM and no way to determine if the FSM ever enrolled in the SBP.

7.  The applicant provides as new evidence a VA Form 10-10, dated 
21 September 1993, which shows the FSM's spouse's name was lined through as first next of kin and the applicant's name handwritten on the form.  

8.  Public Law 83-239, enacted 8 August 1953, established the Uniformed Services Contingency Option Act (USCOA) as a way to provide for an annuity after death to surviving dependents.

9.  Public Law 87-381, enacted 4 October 1961, established the RSFPP.  The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA.

10.  Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and established the SBP.  The RSFPP did not automatically roll over into 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).

11.  Public Law 101-189, enacted 29 November 1989, established a second open season to be conducted 1 October 1991 through 30 September 1992.  It required that enrollees live 2 years from the effective date of election for beneficiaries to be eligible for an annuity.  Public Law 101-510, enacted 5 November 1990, delayed the start of the open season to 1 April 1992 through 31 March 1993.

12.  Public Law 110-552 established legal limitations on the transferability of unfunded Post-9/11 GI Bill benefits and limits eligibility to members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.

DISCUSSION AND CONCLUSIONS:

1.  Her new evidence has been noted; however, it is not sufficient to establish her eligibility for an SBP annuity.

2.  There is no evidence to show the applicant was officially designated as the SBP recipient or, more importantly, that her father ever enrolled in the SBP.

3.  DFAS is a Department of Defense (DoD) agency.  The ABCMR corrects individuals' records.  It does not audit DoD records.
4.  The ABCMR has no authority over the VA pension funds or life insurance.

5.  As her father retired well before 1 August 2009, the option to transfer his educational benefits to her was not available.

6.  Regrettably, in view of the foregoing there is still insufficient evidence upon which to base granting 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 to amend the decision of the ABCMR set forth in Docket Number AR20120009417, dated 18 December 2012.




      _______ _  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)                                         AR20120022197



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ABCMR Record of Proceedings (cont)                                         AR20130008711



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