ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20170007350 APPLICANT REQUESTS: entitlement to the Survivor Benefit Plan (SBP) annuity, based on the death of her husband, a former service member (FSM). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * three marriage certificates (foreign and domestic) * FSM’s Special Orders (SO) Number 1975 * FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending on 30 September 1963 * FSM's death certificate * Defense Finance and Accounting Service (DFAS) letter * her driver license, Medicare Health Insurance Card, and their bank deposit ticket 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 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: a. As per the letter received from DFAS, she has been denied the SBP from her deceased husband. She believes this to be in error for several reasons. First, her husband died on 21 September 1991. At the time of his death, she was unaware of any military benefits that may have been afforded to her. No one for the military advised her regarding potential benefits. In addition, he was apparently unaware of the requirement to make an “election” in order for her to receive any portion of his retirement. b. When reviewing his paperwork, she saw nothing that indicated he knew or should have known to make an election regarding providing her a portion of his retirement. This issue was so prevalent and problematic, the law changed in the early 2000’s so that the spouse would automatically receive the SBP if there was a lack of paperwork or if the service member (SM) did not elect otherwise. The law changed so that when an election was made other than for the spouse to receive the SBP, the spouse is now required to sign the election agreement made by the SM. 3. The applicant provided copies of the following: a. Three marriage certificates (foreign and domestic) showing she and the FSM were married on 23 January 1948 in Ludwigsburg, Germany. b. FSM’s death certificate showing he died on 21 September 1991. The certificate shows he was married and the applicant’s name is listed as his spouse and the informant. c. A letter, dated 26 January XXXX (unknown year), wherein DFAS advised her of the following: * her claims for SBP and/or the Retired Serviceman’s Family Protection Plan (RSFPP) were denied in full * their records showed the FSM did not elect to participate in the SBP or the RSFPP * their decision was final; however, she had a right to submit an appeal to that office within 30 days of the letter d. Her driver license, Medicare Health Insurance Card, and their bank deposit ticket. 4. Review of the FSM’s record shows: a. The FSM was born on 11 March 1925. He enlisted in the Regular Army (RA) on 12 February 1946. b. He and the applicant were married on 28 January 1948. c. He served continuously in the RA through several reenlistments. d. SO Number 175, issued by Headquarters, Department of the Army, on 23 July 1963, announced his release from active duty, by reason of sufficient active service for retirement, and placement on the Retired List, effective 1 October 1963. e. He was honorably retired on 30 September 1963. His DD Form 214 shows he completed over 20 years of active service. f. The FSM’s available record is void of any indication he elected to participate in the SBP in connection with his retirement or during a subsequent open season. g. He died on 21 September 1991. h. DFAS advised the applicant that the FSM did not make an election to participate in the SBP and therefore, she was not entitled to an SBP annuity. 5. By law, military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. The Board considered the applicant's statement, but based upon the record revealing that the FSM failing to submit a timely SBP election, which would have resulted in premium payments being made for coverage, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the FSM’s 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. X 10/21/2019 CHAIRPERSON Signed by: 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, 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 Army Board for Correction of Military Records (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. Public Law 92-425, enacted 21 September 1972, established the Survivor Benefit Plan (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, as amended, also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list. 3. Periodically, Congress passes laws that establish Open Seasons which allow SBP enrollment or changes. For example, Public Law 108-375, enacted 28 October 2004, established an Open Season from 1 October 2005-30 September 2006. All of these Open Seasons were extensively publicized in Army Echoes to ensure all retirees were informed of their existence.