IN THE CASE OF: BOARD DATE: 5 July 2011 DOCKET NUMBER: AR20100028925 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 she be awarded a Survivor Benefit Plan (SBP) annuity based on the service of her deceased husband, a retired former service member (FSM). 2. The applicant states the FSM did not keep up with his retired service member benefits. Had she known about the SBP benefits when she married the FSM she would have wanted to do whatever was necessary to keep them. 3. The applicant provides: * Department of State Health Services Vital Statistics Unit Certificate of Death showing the FSM's date of death as 18 October 2010 * The FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing the FSM retired effective 31 May 1964 FSM's Military Record and Report of Separation Certificate of Service showing the FSM was relieved from active duty on 22 December 1945 * AIC Form 161A (Chronological Active Military Service) * Special Orders 60, Headquarters, Department of the Army, dated 5 March 1964 announcing FSM's retirement from active duty * A State of Texas Marriage Certificate dated 5 March 2003 CONSIDERATION OF EVIDENCE: 1. The FSM completed an AGPZ Form 977 (Data for Retired Pay) on 5 March 1964. Item 29 (Retired Servicemen's Family Protection Plan) shows "Positive DA Form 1041 attached." A DA Form 1041 (Election of Options Under the Uniformed Services Contingency Option Act of 1953), dated 31 October 1957, shows he elected a 1/4 annuity payable to his widow and/or surviving children. 2. The FSM's letter requesting voluntary retirement, dated 3 February 1964, shows in paragraph 6 "I have accomplished an election of options under the Retired Serviceman's Family Protection Plan, DA Form 1041. I did elect to participate." 3. His records indicate he was married at the time of his retirement. There is no available record of the disposition of that marriage. There is also no evidence he ever converted any USCOA (Uniformed Services Contingency Option Act) or Retired Serviceman's Family Protection Plan (RSFPP) coverage he may have had into SBP coverage as required by law. 4. On 5 March 2003, the FSM married the applicant. He died on 18 October 2010. The applicant and the FSM were married for 7 years, 7 months and 14 days. 5. An email note from the External Communications Office of the Defense Finance and Accounting Service states the FSM retired with no eligible SBP beneficiaries, and although he now has a spouse he never notified DFAS of the marriage or supplied them with a marriage certificate. 6. Public Law 83-239, enacted 8 August 1953, established the USCOA (Uniformed Services Contingency Option Act). It covered only persons dependent on the member at the time of his retirement. 7. Public Law 87-381, enacted 4 October 1961, changed the USCOA to the RSFPP. The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA. 8. 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. The RSFPP did not automatically convert to the SBP. It declared a 12-month Open Season for those members who retired prior to enactment of the law (later extended until 20 March 1974). 9. 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, 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. DISCUSSION AND CONCLUSIONS: 1. There is no available evidence that the FSM opted to participate in the SBP when the program was established as required to maintain/convert USCOA/RSFPP to SBP coverage. 2. The FSM and the applicant were married on 5 March 2003. There is no evidence he enrolled in the SBP for spouse coverage during the one available Open Season enrollment opportunity after their marriage. 3. Based on the above, the applicant's request should be denied. 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 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) AR20090018686 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100028925 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1