ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20160016282 APPLICANT REQUESTS: to elect to participate in the Survivor Benefit Plan (SBP) for spouse only. APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * SBP Election, 14 October 1981 * approved retirement * retirement orders * retirement certificate * installation clearing papers * State of Illinois Marriage Certificate * State of Louisiana Death Certificate * State of Illinois Birth Certificate of the former service member's (FSM) daughter FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant, the daughter of the FSM, states, on behalf of her mother: * the SBP election form dated 14 October 1981 was discovered within the last year * due to failure to file, the surviving spouse has not received any benefit from the Army * requests favorable consideration of the application for correction * it would rectify the FSM's surviving spouse's financial position * it would recognize the FSM's service to the United States 3. The FSM honorably retired from the service on 31 October 1967 after serving for 27 years 3 months and 8 days. His service record contains a DA Form 1041 (Election of Options under Retired Serviceman's Family Protection Plan (RSFPP)). At the time, he elected to decline coverage. 4. Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and established the SBP. It declared a 12-month Open Season for those members who retired prior to enactment of the law. Public Law 93-155 extended the open season from 12 to 18 months (21 September 1972 through 20 March 1974). Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 through 30 September 1982. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. 5. The applicant provides a DA Form 5002 (Survivor Benefit Plan Election), signed by the FSM dated 14 October 1981. There is no evidence this election was ever processed by the Defense Finance and Accounting Service (DFAS). An email from DFAS indicates there is not an account at Retired Pay Operations on the FSM. 6. The FSM passed away on 7 August 1983. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board found that the evidence does not reflect the applicant attempted to enroll during the first open season. Further, even if the ABCMR were to correct the FSM’s records to reflect the 14 October 1981 SBP election form was received on the day it is dated and within the second open enrollment season, the FSM did not live the required two years following the date of the election – dying slightly less than 22 months (August 1983) after the date of the election form. Failing to survive the minimum two-year period voids the election and the spouse would not have been eligible for an annuity upon the FSM’s death. Therefore there is no error in the record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 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. 2. Public Law 87-381, enacted 4 October 1961, established the Retired Serviceman’s Family Protection Plan (RSFPP). An RSFPP election could be made by an active member prior to the 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. 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. 3. Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan and 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. It declared a 12-month Open Season for those members who retired prior to enactment of the law. 4. Public Law 93-155, enacted 16 November 1973, extended that Open Season from 12 to 18 months (21 September 1972 – 20 March 1974). 5. Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982. It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity. ABCMR Record of Proceedings (cont) AR20160016282 3