RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 November 2005
      DOCKET NUMBER:  AR20050002897


      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             |
|     |Ms. Beverly A. Young              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John Denning                  |     |Member               |
|     |Ms. Jeanette McCants              |     |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 determined to be
eligible to receive the Survivor Benefit Plan (SBP) annuity.

2.  The applicant states that Section 24 of the DA Form 4240 (Data for
Payment of Retired Army Personnel) contains a signature which has been
forged.  This forgery resulted in the denial of survivor's benefits.  She
requests that this signature be removed and replaced with a statement
indicating that she did not agree with the decision of her deceased
husband, a former service member (FSM), to decline SBP.  She requests that
her eligibility for SBP at the full rate be reinstated to the date of the
FSM's death.  She states that she did not sign this form agreeing to
decline the SBP nor was she counseled concerning the plan.  She does not
know who signed the form.  She states the FSM had suffered a heart attack
before he retired, which may have affected his judgment.  She would not
have agreed to forego the protection of the plan, particularly when the FSM
was in poor health.

3.  The applicant provides a DA Form 4240; her letter to the Defense
Finance and Accounting Service (DFAS); a response letter from DFAS; an IRS
Form 8453 (U.S. Individual Income Tax Declaration for Electronic Filing); a
real estate closing statement; the FSM's death certificate; two letters
from the Department of Veterans Affairs with a Rating Decision; and three
discharge documents.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the U.S. Marine Corps, the FSM
enlisted in the Regular Army on 1 May 1975.  He married the applicant on 4
July 1975.

2.  The FSM's personnel record contains a memorandum dated 23 September
1992.  The memorandum states the FSM was admitted to Evans Army Community
Hospital on 23 September 1992 for a reoccurrence of coronary artery disease
and requests cancellation of his retirement.

3.  On 11 December 1992, the FSM completed a DA Form 4240.  He indicated
that he was married and had dependent children.  He elected to decline SBP
coverage.

4.  The applicant's "signature" appears on the reverse of the DA Form 4240.
 The signature is different from her signature as it appears on her DD Form
149 (Application for Correction of Military Record under the Provisions of
Title 10, U.S. Code, Section 1552).

5.  The FSM continued to serve on active duty and retired from the Regular
Army on 1 January 1993.

6.  The applicant provided a copy of an IRS Form 8453 dated 18 February
1993. The signature is different from her signature as it appears on her DA
Form 4240.

7.  The FSM died on 17 March 1998.  His death certificate shows his marital
status as married and lists the applicant as spouse.

8.  In a 16 June 1998 letter from the Department of Veterans Affairs,
Regional Office in Denver, Colorado, the applicant was informed that she
was entitled to service-connected death benefits, called Dependency and
Indemnity Compensation (DIC).

9.  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.

10.  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.

11.  Title 10, U.S. Code, section 1450(e)(1) provides that if an SBP
annuity is not payable because the DIC payment is greater, then any amount
deducted from the retired pay of the deceased member shall be refunded to
the surviving spouse or former spouse.

12.  Title 10, U.S. Code, section 1450(c) requires an SBP offset for the
amount of DIC paid.  Section 1450(c)(1) states that if, upon the death of a
member participating in the SBP, the surviving spouse or former spouse is
also entitled to DIC, the surviving spouse or former spouse may be paid SBP
annuity, but only in the amount that the annuity otherwise payable would
exceed that compensation.

DISCUSSION AND CONCLUSIONS:

1.  The FSM completed a DA Form 4240 in December 1992 and elected to
decline participation in the SBP.  While the applicant's "signature"
appears on the reverse of the form, that signature is different from her
signature as it appears on her DD Form 149.

2.  The Board accepts the applicant's contention that someone forged her
signature on the DA Form 4240 and accepts her contention that she did not
concur with his decision to decline the SBP; therefore, the FSM should have
been automatically enrolled in the SBP.

3.  Since the SBP was never paid for, it would be equitable to collect all
due premiums.  However, it is noted the applicant is entitled to DIC.
Since she might not be eligible to receive the SBP, due to the required
offset, SBP premiums should not be collected unless and until she becomes
eligible to receive the SBP annuity.

BOARD VOTE:

LE______  JD______  JM______  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:

      a.  showing that the applicant did not concur with the FSM's decision
to decline the SBP, thereby automatically enrolling the FSM in the SBP; and

      b.  that the applicant be paid the SBP annuity retroactive to the
date of the FSM's death in accordance with the law, if otherwise eligible.
SBP premiums will be collected only if and when she becomes eligible to
receive that SBP annuity.




                                  Lester Echols_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002897                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051117                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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