IN THE CASE OF:	  

		BOARD DATE:	    8 September 2011

		DOCKET NUMBER:  AR20100029110 


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 (FSM), requests, in effect, the FSM's Survivor Benefit Plan (SBP) termination be cancelled and his SBP be reinstated.
 
2.  The applicant states:

* she was never given the opportunity to consent or non-consent to termination of SBP nor does she remember signing any document authorizing termination of SBP
* she requested a copy of the documentation used by the Defense Finance and Accounting Service (DFAS) to terminate SBP coverage, but to date she has received no response

3.  The applicant provides:

* marriage certificate
* FSM's death certificate

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 14 May 1928.  He enlisted in the Regular Army on 27 May 1947 and he retired in the rank of sergeant first class on 30 September 1968.

2.  He married the applicant on 16 May 1970.

3.  On an unknown date, he enrolled in the SBP during an Open Season.

4.  On an unknown date, he apparently requested to discontinue participation in the SBP.

5.  Information obtained from officials at DFAS revealed there is no SBP election form, but records show the FSM's account changed to no beneficiary on 16 September 1998.

6.  The FSM died on 13 June 2010.

7.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  Upon creation of the SBP, an 
18-month Open Season was conducted from 21 September 1972 to 20 March 1971 in which all pre-1972 retirees were given the option to enroll.  

8.  Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 to 30 September 1982.

9.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 to 31 March 1993.

10.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP.  Members retired for more than 2 years as of 17 May 1998 were authorized a 1-year opportunity (17 May 1998 through 16 May 1999) to disenroll.  The spouse's concurrence is required.  No premiums will be refunded to those who opt to disenroll.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she was never given the opportunity to concur or non-concur with the FSM's option to withdraw from the SBP nor does she remember signing any document authorizing termination of the SBP.

2.  The FSM retired in 1968.  Since DFAS has no SBP election form and its records show the FSM's SBP account changed to no beneficiary on 16 September 1998, it appears he enrolled in the SBP during an Open Season and he withdrew from the SBP during the 1-year opportunity (17 May 1998 through 16 May 1999).  In the absence of evidence to the contrary both these actions are presumed to have been accomplished in accordance with law and regulation.  Regrettably, in view of the foregoing there is no basis for granting the applicant's request.

3.  However, if the applicant can provide additional evidence (e.g., the termination request form) she may apply for reconsideration.

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)                                         AR20100029110



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ABCMR Record of Proceedings (cont)                                         AR20100029110



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