IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100025810 


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 widow of a deceased former service member (FSM), requests, in effect, that she be designated as the annuitant of the FSM's Survivor Benefit Plan (SBP).

2.  She states:

* when the FSM retired in August 1986, spousal concurrence had just gone into effect
* she did not concur with his decision not to take SBP 
* she did not sign a spousal concurrence letter 
* she just recently learned about the spousal concurrence letter

3.  The applicant provides a copy of the FSM’s Certificate of Death.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military service records show that he initially enlisted in the U.S. Army on 15 June 1968.  

2.  He retired from the Army on 31 July 1986.

3.  His record contains a USAFAC Form 30-108 (Reply to Correspondence for Request for Information Regarding SBP), dated 26 August 1986, which shows 

the FSM was informed that in accordance with Public Law 99-145, SBP coverage has been established in the full amount at maximum level because spousal concurrence was not received.  

4.  His record contains an unidentified document in which he stated "previous one was done and gave [sic] to finance 31 July 1986 when I retired.  I also decline coverage.  I don't want it."

5.  He died on 12 August 2003.

6.  His official records contain a Computation Worksheet, dated 3 October 2003, which shows that there was no monthly or yearly pay out in SBP.  This document also shows there was no SBP credit or debt. 

7.  His official records contain a document which shows that in his annuity information he had no eligibility for SBP. 

8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.   

9.  Public Law 99-145, the SBP, effective 1 March 1986, established that a spouse's written concurrence was required for retiring member's election that provides less than maximum spouse coverage.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be designated as the annuitant of FSM’s SBP was carefully considered and found to have merit.

2.  The evidence of record clearly shows that the FSM elected not to participate in the SBP without the spouse's concurrence.  However, prior to the FSM's 1 August 1986 retirement, Congress enacted legislation defaulting SBP coverage to maximum coverage unless a spouse concurred in the election of reduced or no coverage.  As a result, the FSM's record should be corrected to show that the FSM elected SBP spouse coverage and that she applied for the FSM's annuity on 13 August 2003, the day after this death.  The SBP premium payments will be recouped from her annuity.


BOARD VOTE:

__X_____  __X_____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_______  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing:

   a.  that the FSM had SBP spouse coverage due to default from the date of his retirement; a that the applicant applied for his annuity on 13 August 2003, the day after his death; and that she is eligible for payment of the annuity retroactive to 13 August 2003; and

   b.  advising the applicant that DFAS will be instructed to collect any SBP premium payments due as a result of this correction.



      _______ _  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)                                         AR20100025810



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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