IN THE CASE OF: BOARD DATE: 22 September 2015 DOCKET NUMBER: AR20150009817 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 22 September 2015 DOCKET NUMBER: AR20150009817 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 decisions of the ABCMR set forth in Docket Number AR20120000437, dated 30 August 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. IN THE CASE OF: BOARD DATE: 22 September 2015 DOCKET NUMBER: AR20150009817 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 surviving spouse of a deceased former service member (FSM), requests reconsideration of her earlier request for correction of her late husband's records to show he elected Survivor Benefit Plan (SBP) spouse-only coverage based on the full amount of his retired pay. 2. The applicant states: a.  Her late husband's divorce decree, dated 22 June 1970, indicated he was not married at the time SBP was started and he had no eligible beneficiaries. b.  She and her late husband were married on 17 May 1975 and he failed to request SBP coverage before the anniversary date of their marriage. c.  She understands that open enrollment seasons occurred; however, they could not afford to pay the required back premiums, interest, and penalty fees at the time. 3. The applicant provides: * FSM's divorce decree * Army Board for Correction of Military Records (ABCMR) Record of Proceedings Docket Number AR20120000437, dated 30 August 2012, with original application * FSM's DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 1 July 1952 * FSM's death certificate * their marriage certificate * Congressional correspondence 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 ABCMR in Docket Number AR20120000437 on 30 August 2012. 2. The applicant provided a new argument and evidence not previously considered by the Board that warrant consideration at this time. 3. On 20 September 1966, the FSM completed a DA Form 2339 (Application for Voluntary Retirement). Item 10 (Election under Retired Serviceman's Family Protection Plan (RSFPP)) shows he did not elect RSFPP coverage. 4. On 30 November 1966, the FSM retired. His DD Form 214 for this period shows he was married at the time of his retirement. 5. She provided a copy of the FSM's divorce decree, dated 22 June 1970. 6. On 17 May 1975, she and the FSM were married. 7. On 9 November 2011, the FSM died. His death certificate shows he was married to the applicant at the time of his death. 8. On 7 February 2012, the Defense Finance and Accounting Service confirmed there was no SBP election form on file for the FSM. REFERENCES: 1. Public Law 87-381, enacted 4 October 1961, established the RSFPP. An RSFPP election could be made by an active member prior to 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. 2. Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and established the SBP. The SBP provided that military members serving 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. A retired member could enroll for coverage of a new spouse gained through post-retirement marriage within 1 year of said marriage. The law also declared a 12-month open enrollment 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 to 20 March 1974). 3. Subsequent open enrollment seasons were given extensive publicity 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. The laws authorizing the open enrollment seasons and the periods covered were as follows: * Public Law 97-35 – 1 October 1981 through 30 September 1982 * Public Law 98-94 – 24 September 1983 through 23 September 1984 * Public Law 101-189 – 1 October 1991 through 30 September 1992 – deferred to 1 April 1992 through 31 March 1993 * Public Law 105-261 – 1 March 1999 through 29 February 2000 * National Defense Authorization Act for Fiscal Year 2005 – 1 October 2005 through 30 September 2006 DISCUSSION: 1. The evidence of record shows the FSM was married at the time of his retirement on 30 November 1966 and he elected not to participate in the RSFPP. 2. The FSM divorced and subsequently married the applicant on 17 May 1975. Although the RSFPP was repealed and replaced by the SBP, he had 1-year from the date of his marriage to the applicant to make an election, as well as five open enrollment seasons. 3. The FSM died on 9 November 2011 and the Defense Finance and Accounting Service confirmed there was no SBP election form on file for him. 4. Although the applicant is now willing to pay retroactive SBP premiums, she acknowledged she and the FSM were aware of the open enrollment seasons and admitted they made a conscious decision not to enroll in the SBP because they could not afford the associated costs at the time. There is no evidence indicating an error or injustice occurred in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009817 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009817 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2