ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2020 DOCKET NUMBER: AR20170006630 APPLICANT REQUESTS: to add the spouse of the deceased former service member (FSM) to his Reserve Component Survivors Benefit Plan (RCSBP). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * letter from attorney * Report of Change of Status and Address * Record of Emergency Data * Change or Designation of Beneficiary Life Insurance * applicant's death certificate 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 spouse of the FSM, through her attorney, states: a. The United States Government has been unable to locate the FSM's SBP election documents. The applicant exhausted her administrative remedies prior to making an application to the Board. She requested the FSM's military records from the Department of the Army, the Defense Finance and Accounting Service (DFAS), and the National Archives and Records Administration. Despite the extensive efforts of the applicant, the United States Government has been unable to locate or produce a copy of the FSM's SBP Election Certificate. As a result, there is nothing in the FSM's records that indicates whether he made an informed and conscious decision not to elect to provide SBP for the applicant. b. There were key documents from the FSM's official military personnel file that was evidence of his intent to care for the applicant and family during his life and in the event he preceded them in death. The FSM completed a change in marital status in 1946 listing the applicant as his wife and directing his family allowance be sent to her. There were also several documents spanning the course of the FSM's military service such as the Change or Designation of Beneficiary to his life insurance where he named the applicant as the beneficiary to care for the applicant and his children. The FSM completed a Record of emergency data in 1952 listing the applicant as recipient of one hundred percent of his pay and benefits in the event he was missing or otherwise unable to transmit his pay to his dependents. c. Public Law 92-425 enacted on 21 September 1972 repealed the Retired Serviceman's Family Protection Plan and established SBP. The SBP provides that military members may elect to have their retired pay reduced to provide an annuity after death to their surviving dependents. d. The necessity of making an informed and intelligent decision on this issue is of such importance that retiring Soldiers today are counseled prior to making an SBP election. In addition, 10 US Code section 1448 requires an eligible spouse concur if the Soldier declines to elect SBP coverage, elects less than the maximum coverage, or elects coverage for child only. These requirements are designed to ensure very important decisions regarding life after retirement and life after the death of one's spouse are made with full and complete knowledge of all those who are affected by such decisions. e. The FSM retired from active duty in July 1962 and began service in the United States Army Reserve (USAR). He retired from service in (February) 1972, several months prior to the enactment of SBP. The FSM passed away in 1977. The applicant carried out the duties that fell on the spouse of a career Soldier. She raised three children and maintained the household during the FSM's service in the Army and USAR. In the absence of documentation showing the FSM opted not to elect SBP or if he made an informed and conscious decision not to elect SBP either at the time of his retirement from active duty or the USAR or during the several open season periods throughout that time, it is consistent with the evidence available the he fully intended to provide for his wife and family in the event he was no longer able to provide for them. As a result of this evidence, and in the interest of justice, the FSM's records should be amended to indicate he elected the SBP be paid to the applicant following his death. f. The applicant has attempted to secure the benefits owed to her since December 1977 when she inquired to DFAS about the cessation of retirement benefits previously provided to her. Between 1977 and the date of the application, the applicant made numerous inquiries to the Department of Veterans Affairs about her entitlement to these benefits only to be redirected to other agencies and/or denied without full and comprehensive explanations. The applicant's continued quest to obtain SBP is indicative of her belief that she was entitled to those benefits. It is in the interest of justice that the Board considers her application now that she has received legal assistance to direct her almost forty year quest to obtain the benefits she is owed. Her previous efforts should help, not hinder, her application. 3. There is no evidence in the FSM's record his election for the SBP. In email communication with DFAS, they have no retirement record regarding the FSM. 4. The applicant, through her attorney, provides the following documents for the Board's consideration: * a Report of Change of Status and Address wherein the FSM added the applicant to his records because of their marriage on 29 March 1946 * a Record of Emergency Data for the United States Army naming the applicant as his spouse * a Change or Designation of Beneficiary, dated 29 April 1952, showing the applicant as the principal beneficiary to his National Service Life Insurance * the death certificate of the applicant showing she died on 18 May 2017 5. See applicable references below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the law associated with the Survivor Benefit Plan. The Board considered the applicant’s request, the Former Service Member’s record of service, his retirement from active duty, the insurance elections in his record, his service and retirement from the USAR prior to the enactment of SBP. The Board found no evidence of the FSM’s entitlement to make an SBP election. The Board found, with the applicant’s passing, there is no exception allowance or proviso for conferring benefits upon the estate of the surviving spouse. Unfortunately, the reality caused by the applicant’s passing terminates the pendency of the matter. As a result, and based on a preponderance of evidence, the Board determined that the absence of SBP benefits for the FSM’s spouse was not in error or unjust. 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. 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. Members already retired on September 21, 1972, who had coverage under the RSFPP, had three choices convert from RSFPP to the Survivor Benefit Plan (SBP); or retain RSFPP and also elect coverage under SBP to the extent that combination of the two annuities did not exceed monthly gross retired pay; or retain RSFPP and decline coverage under SBP. 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 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive). An Open Season was established from 1 October 1978 – 30 September 1979; later extended to 31 March 1980. ABCMR Record of Proceedings (cont) AR20170006630 5