RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 July 2006
      DOCKET NUMBER:  AR20050017109


      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:

|     |Mr. John t. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 that she be determined to be the eligible
beneficiary of the Survivor Benefit Plan (SBP) of her deceased spouse, a
former service member (FSM).

2.  The applicant states it was the FSM’s intent that she get widow’s
benefits from the Army.  After their marriage, his health went downhill.
He believed he had done everything necessary to ensure she would be taken
care of after his death.  They both thought everything was done because she
got military health benefits, a military identification card, and post
[exchange] privileges, and she was also on his Social Security.

3.  The applicant provides two of the FSM’s separation documents; his
honorable discharge certificate; their marriage certificate; his death
certificate; three letters  of support dated 17 August 2005, 12 October
2005, and 23 November 2005; and a 24 February 2005 letter from the Defense
Finance and Accounting Service (DFAS).

CONSIDERATION OF EVIDENCE:

1.  The FSM was inducted into the Army on 7 August 1944.  He retired on 1
May 1966.

2.  The FSM and the applicant married on 2 October 2003.  The FSM died on
23 January 2005.

3.  The 17 August 2005 letter of support provided by the applicant was from
a friend of the family.  That individual stated in part, “(the FSM) said
many times to many people that he wanted and expected his wife would be
cared for by his VA pension.”

4.  The 23 November 2005 letter of support provided by the applicant was
from a member of the Legal Aid Society of Hawaii.  That individual stated
the FSM indicated, around September 2003, that he wanted to make sure that
his long-time companion (i.e., the applicant) would be taken care of when
he died, to include being entitled to Social Security and his military
pension.  That individual advised the FSM that he and the applicant would
have to marry in order to entitle her to those two benefits.

5.  By letter dated 24 February 2005, DFAS informed the applicant that its
records indicated the FSM waived his retired pay to receive a Civil Service
annuity payment.  Therefore, no amounts of retired pay were due from DFAS.

6.  On 29 June 2006, DFAS informed the Board analyst that the FSM never
enrolled in the SBP.

7.  Public Law 92-425, enacted 21 September 1972, established the SBP.
Upon creation of the SBP, an 18-month Open Season was conducted from
21 September 1972 through 20 March 1974, in which all pre-1972 retirees
were given the option to enroll.  The Department of the Army contacted all
previously retired service members and explained to them the benefits and
procedures provided by SBP.  This was done on several occasions.  First, a
bulletin was sent out describing the SBP.  The bulletin was followed by a
circular and then by a letter that included a form, which when completed
and returned would extend the benefits of SBP to those already retired.  A
final notice provided a box to check on a postal card indicating the
retiree's intention.

8.  Army Echoes, the Army bulletin published and mailed to retirees to keep
them abreast of their rights and privileges and to inform them of
developments in the Army, reminds retirees, as it did in its January
through April 2004 issue, to “Remember:  You are responsible for updating
your retired pay file information at DFAS-CL (address below) within one
year of the event if you marry, remarry, have a child, are widowed or
divorced and need to make or update a Survivor Benefit Plan (SBP)
election.”

9.   Title 10, U. S. Code, section 1450a(d) states, in effect, that if a
retiree waives his military retired pay for the purpose of receiving civil
service retired pay, an SBP annuity shall not be payable unless that
retiree notified the Office of Personnel Management that he did not desire
any spouse surviving him to receive a civil service annuity.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant stated it was the FSM’s intent that she receive
widow’s benefits from the Army, she provided one letter of support that
indicated the FSM wanted and expected she would be cared for by his
Department of Veterans Affairs (VA) pension.  That is not the same as an
Army pension.

2.  It is true the applicant also provided another letter of support that
indicated the FSM wanted to make sure the applicant received his military
pension (i.e., a military SBP annuity).  However, records at DFAS show that
the FSM never took steps to enroll in the military SBP.  Therefore, there
is insufficient evidence on which to grant the relief requested.

3.  Since DFAS indicated the FSM waived his military retired pay to receive
a Civil Service annuity payment, the applicant might be entitled to a Civil
Service SBP annuity.  She should contact the government agency from which
the FSM retired to inquire about that annuity.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __jcr___  __eem___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  ___John T. Meixell____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017109                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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