IN THE CASE OF: BOARD DATE: 20 OCTOBER 2015 DOCKET NUMBER: AR20150002803 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 spouse of a deceased former service member (FSM), requests, in effect, that her husband's records be corrected to show she is entitled to receive his Survivor Benefit Plan (SBP) annuity. 2. The applicant states that, on 15 October 1954, the FSM enrolled in the Uniformed Services Contingency Option Act (USCOA) of 1953. (The USCOA was converted to the Retired Serviceman's Family Protection Plan (RSFPP) and subsequently converted to the SBP.) a. He elected Option 2 (50 Percent [%] of My Reduced Retired Pay Payable To or On Behalf of My Surviving Child or Children Unmarried and Under 18 Years of Age) and Option 3 (50% of My Reduced Retired Pay Payable To or On Behalf of My Surviving Widow Until Remarriage or Death). b. The FSM passed away on 27 October 1986 and she never received the SBP annuity. c. She acknowledges that, if the FSM failed to make the required payments from October 1954 to October 1986, she would be responsible for all premiums that were/are due prior to receiving the annuity. 3. The applicant provides copies of – * their marriage license * DA Form 1041 (Election of Options Under the USCOA of 1953) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * the FSM's Certificate of Death 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 was born in June 1915. He entered military service on 11 June 1935. 3. Five DD Forms 214 show the FSM had continuous honorable active duty enlisted service in the U.S. Army Air Force and in the Regular Army from 10 January 1942 through 31 December 1958. He attained the rank of sergeant first class. 4. A review of the FSM's military personnel records revealed, in pertinent part, four DA Forms 1041 (and related correspondence) that show the FSM listed E___ G. M____ (the applicant) as his spouse and two children; N___ J. M___ (daughter) and C___ E. M___ Jr. (son). a. A DA Form 1041, dated 25 March 1954, shows the entry, "I decline to make a decision at this time" and the FSM and an Army official signed the form on 29 March 1954. b. A DA Form 1041, dated 15 October 1954, shows the FSM elected Option 2 (Children, 50%) and Option 3 (Spouse, 50%), and the FSM and an Army official signed the form on 20 October 1954. c. Headquarters, Department of the Army (HQDA), Office of The Adjutant General (OTAG), Washington, DC, letter, dated 22 December 1954, shows clarification was requested pertaining to the FSM's years of service and the actual date of submission of the DA Form 1041 because the form was received after 1 November 1954. It also shows the combination of Options 2 and 3 were not authorized. d. On 19 January 1955, the Adjutant, 606th Anti-Aircraft Artillery Battalion (Gun), Grand Island, NY, responded that the FSM had completed 17 years, 10 months, and 21 days of total service for pay purposes as of 15 October 1954. He added that due to a changeover in personnel, he was unable to furnish the date the previous DA Form 1041 was forwarded. The FSM provided a statement affirming that he completed the DA Form 1041 on 15 October 1954. He also submitted a new DA Form 1041, dated 14 January 1955. e. The DA Form 1041, dated 14 January 1955, shows the FSM elected Option 1 (50% of My Reduced Retired Pay Payable To or On Behalf of My Widow So Long As She Remains Unmarried) and that the FSM and an Army official signed the form on 15 January 1955. f. A DA Form 1041, dated 29 May 1958, shows in item 11, the FSM placed an "x" in the box: "This is a request for revocation (cancellation) of a prior election" and that the FSM and an Army official signed the form on 29 May 1958. g. OTAG letter, dated 27 June 1958, shows the FSM's DA Form 1041, dated 29 May 1958, was received. It was noted, "[t]he records show that you elected an erroneous combination of options under the USCOA and corrective action was not taken within the time limit required by law, 1 November 1954. Under a ruling of the Comptroller General of the United States, you do not have a valid election and will not have coverage under the Act when you enter a retired status." It also shows, "[y]our revocation has been noted and filed." 5. HQDA, Washington, DC, Special Orders Number 240, dated 4 December 1958, released the FSM from assignment and duty on 31 December 1958 and placed him on the retired list effective 1 January 1959. 6. A DD Form 1300 (Report of Casualty), prepared on 22 May 1987, shows the FSM died on 27 October 1986. 7. In support of the application the applicant provides the following documents. a. State of Maryland, Washington County, Marriage License, that shows Father B___ P____, Pastor, St. Paul's United Brethren Church, Hagerstown, MD, certificated the FSM and applicant were united in marriage on 12 October 1945. b. Commonwealth of Pennsylvania, Department of Health Vital Records, Local Registrar's Certification of Death, issued on 31 October 1986, that shows the FSM died on 27 October 1986. It also shows the FSM was married at the time of his death. 8. Public Law 83-239, enacted 8 August 1953, established the USCOA. Unless Option 4 (No further deductions shall be made from my retired pay commencing with the first day of the month following that in which there is no beneficiary eligible to receive an annuity upon my death) was elected along with either Option 1 (annuity payable to or on behalf of widow) or Option 2 (annuity payable to or on behalf of surviving child/children) or Option 3 (annuity payable to or on behalf of surviving widow until her remarriage), premiums continued to be paid after the death of the beneficiary. 9. Public Law 87-381, enacted 4 October 1961, established the RSFPP. The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA. (Option 4 was not made automatic until Public Law 90-485 was enacted on 13 August 1968 for members retired on or after 13 August 1968.) 10. Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and established the SBP. It provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Retiring members and spouses were to be informed of the SBP options and effects. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that the records of the FSM should be corrected to show she is entitled to receive his SBP annuity based on a DA Form 1041 prepared by the FSM on 15 October 1954. 2. Records show the FSM completed a DA Form 1041 on 20 October 1954 and that he elected Option 2 and Option 3. a. On 22 December 1954, the FSM was notified that he had elected an unauthorized combination of options under the USCOA and that corrective action was not taken within the time limit required by law (1 November 1954). b. The FSM submitted another DA Form 1041 on 15 January 1955 and he elected Option 1. However, this DA Form 1041 was also submitted after the time limit required by law. c. The FSM then submitted a DA Form 1041 on 29 May 1958 wherein he indicated it was a request for revocation (cancellation) of a prior election. d. On 27 June 1958, the FSM was advised that he had previously elected an unauthorized combination of options under the USCOA and that corrective action had not been taken within the time limit required by law. He was also informed that he did not have a valid election and he will not have USCOA (SBP) coverage when he entered a retired status. 3. Records show the applicant retired from active Army service on 31 December 1958 prior to the implementation of the RSFPP and the SBP. He was married to the applicant at the time. 4. The FSM died on 27 October 1986 and he was married at the time. 5. The evidence of record shows the FSM elected an unauthorized combination of options and he did not submit the documentation required to enroll in the USCOA within the time required by law (1 November 1954). As such, he was not enrolled in the USCOA. Moreover, on 29 May 1958, he requested revocation (cancellation) of his prior election, which affirmed his understanding that he would not have USCOA (SBP) coverage when he entered a retired status. 6. Therefore, regrettably, there is insufficient evidence that would warrant granting the requested relief. BOARD VOTE: ___x____ ___x____ ____x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined that the evidence presented was sufficient to warrant a recommendation for relief. The record shows evidence of confusion on the part of the FSM regarding authorized elections under the USCOA and the deadlines for making those elections under what was then a relatively new program. The amount of responsibility that should be placed on the FSM in this case is unclear, but the record does clearly show that he intended to provide a survivor benefit to the applicant and made repeated attempts to initiate coverage until finally giving up approximately 7 months prior to his retirement. 2. In light of the available evidence, it would be appropriate to correct all records of the individual concerned by showing the DA Form 1041, dated 14 January 1955, was submitted in a timely manner and accepted as a valid USCOA election. As a result of this correction, the applicant should be paid the SBP annuity less any required premiums effective the date after the FSM's death. _____________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) AR20150002803 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002803 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1