RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 February 2005
      DOCKET NUMBER:  AR20040010121


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that she be paid the Survivor
Benefit Plan (SBP) annuity based on the full base pay of her deceased
spouse, a former service member (FSM).

2.  The applicant states that she did not sign the DA Form 4240 (Data for
Payment of Retired Army Personnel) concurring with the FSM's election to
enroll in the SBP for a reduced base amount.  She can positively state that
she never signed any form electing to reduce her benefits under the SBP.
Further, it is the family's understanding, based on the statements of the
FSM, that he did not elect a reduced base amount.  Further still, the
family cannot verify the FSM's signature based on the poor quality of the
copy of the DA Form 4240.

3.  The applicant provides their marriage certificate, the FSM's death
certificate, and the DA Form 4240.

CONSIDERATION OF EVIDENCE:

1.  The FSM and the applicant married on 15 September 1954.  The FSM
entered active duty as a commissioned officer on 19 January 1955.  The FSM
was released from active duty on 28 February 1985 for the purpose of
retirement. He was recalled to active duty on 1 March 1985 for 2 years.

2.  At that time, the FSM completed a DA Form 4240.  He checked that he
desired spouse only coverage for a reduced ($600.00) base amount.  He
signed but did not date the form on the reverse.  The applicant did not
sign in Part VII (Survivor Benefit Plan Certificates (Required when married
member does not elect full coverage or declines coverage for spouse)).
Part VII does not indicate that the applicant was informed by letter of the
FSM's election.  The SBP counselor signed the form on 6 March 1985.

3.  The FSM reverted to a retired status on 1 March 1987.

4.  The DA Form 4240 provided by the applicant is dated 25 February 1987.
(This was also the date of the DA Form 4240 filed with the Defense Finance
and Accounting Service.)  It shows that the FSM checked that he desired
spouse only coverage for a reduced ($910.00) base amount.  The FSM signed
and dated the reverse of the form.  The applicant did not sign in Part VII.
 Part VII does not indicate that the applicant was informed by letter of
the FSM's election.  The SBP counselor signed the form on 25 February 1987.

5.  The FSM died on 23 May 2004.

6.  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.  Retiring members and
spouses were to be informed of the SBP options and effects.  The election
must be made prior to the date retired pay will be effective or the SBP
election defaults to spouse coverage, full base amount.

7.  Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986,
required a spouse’s written concurrence for a retiring member’s election
that provides less than the maximum spouse coverage.

8.  SBP guidance from the Office of the Deputy Chief of Staff for Personnel
stated that those who retire and are immediately recalled to active duty
the next day do not make an SBP election until finally released from active
duty.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM was first released from active
duty for the purpose of retirement on 28 February 1985 and was immediately
(1 March 1985) recalled to active duty.  At that time, he had completed a
DA Form 4240 which indicated he desired spouse only SBP coverage for a
reduced base amount.  He did not date this form and the SBP counselor
signed it on 6 March 1985, after the FSM would have been eligible to draw
retired pay.  In addition, even though the applicant's consent was not
needed for the FSM's decision to elect reduced coverage, she was required
to be notified.  The DA Form 4240 does not show that a notification letter
was sent to the applicant.  At any rate, the first attempted SBP election
was premature and of no legal effect as the FSM was immediately recalled to
active duty the next day after his retirement.

2.  The FSM was released from active duty on 28 February 1987 and reverted
to his retired status.  He completed a second DA Form 4240 at that time,
again electing spouse only SBP coverage at a reduced base amount.  However,
again the DA Form 4240 does not show that the applicant was sent a
notification letter advising her of his decision to elect reduced coverage.
 Furthermore, effective     1 March 1986, a spouse’s written concurrence
for a retiring member’s election that provides less than the maximum spouse
coverage was required.  There is no evidence of record to show the
applicant gave her concurrence for this reduced coverage.

3.  Without the applicant's concurrence in the instance of his second SBP
election, SBP coverage should have defaulted to spouse coverage, full base
amount in either instance.

4.  Since the FSM's SBP election should have defaulted to spouse coverage
based on full base amount, he should have been paying SBP premiums based on
the full base amount.  It does not appear that he did so.  While it would
be equitable to pay the applicant the annuity based on the full base
amount, it would also be proper for the Defense Finance and Accounting
Service to collect any additional required SBP premiums before starting
payment of the adjusted annuity.

BOARD VOTE:

__jlp___  __tap___  __kwl___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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:

     a.  showing that the FSM's 1985 SBP election was not valid as
premature and that the applicant did not concur with the FSM's February
1987 election of SBP spouse only coverage for a reduced base amount;

     b.  showing that the FSM's attempted decision in the first instance
and the applicant's failure to concur in the second instance were noted by
the appropriate office and the FSM's elections were determined to be
invalid, defaulting the coverage to spouse coverage, full base amount; and

     c.  paying the applicant the SBP annuity based on full base amount.

2.  That the applicant be advised that the Defense Finance and Accounting
Service will be instructed to collect any SBP costs due.




            __Jennifer L. Prater__
                    CHAIRPERSON




INDEX

|CASE ID                 |AR20040010121                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050215                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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