BOARD DATE: 15 October 2009 DOCKET NUMBER: AR20090007384 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 widow of a deceased former service member, requests correction of the FSM's military records to show that he had elected to participate in the Survivor Benefit Plan (SBP). 2. The applicant states that because the FSM served in the Army for 20 years she should be entitled to receive SBP. Her income is very low and SBP would dramatically improve her life. 3. The applicant provides, in support of her application, copies of her marriage certificate and the FSM's death certificate and Honorable Discharge Certificate. 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. The FSM enlisted in the Regular Army on 7 June 1957. He married the applicant on 9 October 1959. The FSM served through a series of reenlistments until his retirement for length of service on 30 June 1977. He had attained the rank of sergeant first class, pay grade E-7 and had completed 20 years and 24 days of creditable active duty service. 3. A DA Form 4240 (Data for Payment of Retired Army Personnel) dated in June 1977 shows that the FSM declined coverage under the SBP. The applicant signed this form indicating that she had been fully informed and counseled concerning the options available under the SBP. She further indicated that she understood the decision not to participate in the SBP. 4. The FSM died on 1 February 2002. 5. Public Law 92-425, enacted 21 September 1972, 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that she should be entitled to receive SBP based on the FSM's 20-year period of service. 2. The FSM, with the applicant's knowledge and understanding, declined to participate in the SBP. Not a single SBP premium was paid for nearly a 25-year period. There is no evidence that the FSM or applicant took any action prior to the FSM's death to reverse their decision to not participate in SBP. 3. There are no provisions of law or regulation that provide for reversing the FSM's decision, with the applicant's concurrence, not to participate in SBP. 4. In view of the above, the applicant's request for SBP 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 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) AR20090007384 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090007384 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1