IN THE CASE OF: BOARD DATE: 6 October 2011 DOCKET NUMBER: AR20110005307 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 to be awarded Survivor Benefit Plan (SBP) benefits. 2. The applicant states: * the FSM died on 11 November 1999 * she believes the FSM participated in the SBP * she never received benefits or a letter explaining her right to elect SBP payments 3. The applicant provides a letter from counsel and the FSM's death 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 and the applicant were married on 13 March 1969. 3. The FSM was inducted into the Army of the United States on 9 July 1965 and was honorably discharged on 8 July 1967. He enlisted in the Regular Army on 9 September 1967 and his name was placed on the Temporary Disability Retired List (TDRL) on 20 August 1974. 4. The FSM's record contains a DD Form 1883 (SBP Election Certificate) that shows the FSM declined SBP coverage on 16 August 1974. Spousal concurrence was not required at the time of his election. 5. There is no evidence in the FSM's Defense Finance and Accounting Service pay records that shows he participated in the SBP and/or contributed any premiums towards the SBP. 6. On 31 August 1977, the FSM's name was removed from the TDRL and he was permanently retired with a 30-percent disability rating. 7. 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. An election, once made, was irrevocable except in certain circumstances. This law also provided that every member having a spouse and/or child(ren) who retired/transferred to the Retired List on or after that date was automatically covered under the SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the Retired List. Spouses were to be notified of such elections, but had no concurrence rights. 8. Public Law 97-35, enacted 12 August 1981, established an Open Season from 1 October 1981 through 30 September 1982. 9. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provided less than maximum spouse coverage. 10. Public Law 101-189, enacted 29 November 1989, established an Open Season from 1 October 1991 through 30 September 1992. Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 through 31 March 1993. 11. The applicant provided statements and a death certificate which shows the FSM died on 15 November 1999. Item 12 (Surviving Spouse) of the FSM's death certificate shows he was married to the applicant at the time of his death. DISCUSSION AND CONCLUSIONS: 1. The applicant's request to be entitled to receive SBP benefits was carefully considered. 2. The evidence of record shows that prior to his retirement, the FSM was provided an opportunity to make an SBP election and he willingly and in writing chose not to participate. At the time, spousal concurrence was not required. Accordingly, he was not enrolled in the SBP and did not have premiums deducted from his retired pay. 3. Subsequent to his retirement, several Open Seasons were established, thus allowing the FSM opportunities to enroll his spouse in the SBP. He did not do so. Regrettably, there is no error or injustice. 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) AR20110005307 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110005307 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1