ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20160018599 APPLICANT REQUESTS: The applicant, the spouse of the Former Service Member (FSM), requests to be awarded the FSM Retired Serviceman’s Family Protection Plan (RSFPP) annuity. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Marriage Certificate, dated 23 March 1960 * Discharge Certificate, dated 22 September 1961 * Applicant’s naturalization certificate * Name change document * Death Certificate, dated 21 September 2016 * Veterans Affairs Form 21-0845 (Authorization to Disclose Personal Information to a Third Party), dated 25 September 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 states when the FSM retired in 1969, the spousal benefit program started in 1972. He was supposed to be grandfathered into the program, and he was not for her to be eligible for a portion of his retirement pension. 3. A review of the FSM’s service records show the following on: * 25 May 1948 – enlisted in the Regular Army * 20 March 1967 – the FSM completed DA Form 1041 (Election of Options Under RSFPP) indicating in item 11 “he did not desire to receive reduced retired pay in order to provide an annuity for his dependents,” it is void of his signature * 19 June 1969 – the FSM completed AGPZ Form 977 (Data for Retired Pay) indicating in item 30 (RSFPP) DA Form 1041 was attached * the FSM’s record is void of another DA Form 1041 * 31 July 1969 – the FSM was honorably retired from active duty 4. The applicant provides: * Marriage certificate showing the FSM married Ms. K- A- on 23 March 1960 * Discharge certificate showing the FSM was honorably discharged from the Army * applicant’s naturalization certificate * document showing the applicant’s name was changed from Ms. E- S- S- to Ms. K- A- * Death certificate showing the FSM died on 17 September 2016 and she was the informant * VA Form 21-0845 showing a request for disclosure of personal information 5. See applicable RSFPP law below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and applicable laws pertaining to Retired Serviceman’s Family Protection Plan (RSFPP) annuities. The Board considered the applicant’s statement, the FSM’s records and election form albeit without a signature, an application for retired pay indicating a DA Form 1041 was attached (subject form not available in the record), the lack of any further documents regarding RSFPP after the FSM’s retirement in 1969 and death certificate provided by the applicant. The Board found insufficient evidence of any election for an annuity other than the one in the record, or any other documents showing payment for an annuity or intent to modify an election during an Open Season. Based on a preponderance of evidence, the Board determined that the absence of an RSFPP annuity with the applicant as beneficiary is not an error or injustice. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted.? 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): Not Applicable ? REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. The Uniformed Services Contingency Option Act (USCOA) of 1953 was the first law to permit military members to receive reduced retired pay during their lifetime in return for ensuring that their widows and eligible children would receive an annuity after their death. Public Law 87-381 of 1961, replaced the provisions of the USCOA with the RSFPP. 3. Public Law 90-485 of 1968, election must be made before the member completes 19 years of service. Option 4 (provides that no further deductions shall be made from retired pay commencing with the first day of the month following that in which there is no beneficiary eligible to receive an annuity under the option elected) was automatic if the member retired on or after 13 August 1968. 4. Public Law 87-381, enacted 4 October 1961, established the RSFPP. The Uniformed Service Contingency Option Act (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. 5. 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. Public Law 93-155, enacted 16 November 1973, extended that Open Season from 12 to 18 months (21 September 1972 – 20 March 1974). ABCMR Record of Proceedings (cont) AR20160018599 4 1