RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20050017526


      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             |
|     |Mr. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 the records of her deceased
spouse, a former service member (FSM), be corrected to show he elected to
participate in the Survivor Benefit Plan (SBP) for spouse coverage.

2.  The applicant states, in effect, that she was never informed verbally
or notified in writing of the fact that the FSM had declined SBP coverage.
The applicant also states, in effect, that the retirement services officer
allowed her husband to decline the SBP for a survivor annuity, despite the
fact that the applicant was required to be counseled and sign Item 24 of
the DA Form 4240 (Data for Payment of Retired Army Personnel).  She further
states that this error produces an unjust result because she is now
deprived of a source of income to which she is entitled.  The applicant
does not indicate in the application if she understands that, if her
request were to be approved, retroactive and possibly future SBP premiums
would be deducted from the annuity payments.

3.  The applicant provides a copy of a DA Form 4240, dated 12 April 1993;
DD Form 214 (Certificate of Release or Discharge from Active Duty), with an
effective date of 31 December 1993; Selective Service System (SSS) Form
Number 252 (Order to Report for Induction), dated 15 November 1963; and
City of Temple, Texas, Certification of Vital Record, Certificate of Death
# CI253836, dated 12 August 2005.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military service records show that he was inducted into the
U.S. Army on 5 December 1963.  He and the applicant married on 17 July
1965.

2.  On 12 April 1993, the FSM completed a DA Form 4240 (Data for Payment of
Retired Army Personnel).  Part V (Survivor Benefit Plan Election) of the DA
Form 4240 shows that he declined SBP coverage.  Part VI (Certification) of
the
DA Form 4240 shows that the applicant was not available for counseling, but
she was informed by letter dated 1 March 1993 of the FSM’s decision.  Only
the counselor affixed her signature in Item 24 of the DA Form 4240.
However, a copy of that letter is not available in the FSM’s Official
Military Personnel File.  The FSM retired from the Army on 1 January 1994,
after serving honorably on active duty for a total of 30 years and 26 days.
 The FSM died on 30 July 2005.  The Certificate of Death shows, in
pertinent part, that the applicant was married to the FSM at the time of
his death.

3.  In the processing of this case, coordination was made with the Defense
Finance and Accounting Service (DFAS), General Processing Branch,
Cleveland, Ohio, in order to verify information relevant to the FSM's SBP
election coverage and spousal notification.  This coordination resulted in
the analyst being informed that there was no spousal notification
documentation on file and that the document(s) may have been purged from
the FSM's file.

4.  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.

5.  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.

6.  In the U. S. Court of Claims case of Barber vs. the United States,
decided on 7 April 1982, the Court ruled that an election out of the SBP
was not binding unless the statutory requirement was satisfied that notice
of the declination be given to the spouse.  This was a U.S. Air Force case.
 Air Force regulations at the time required that a copy of the notification
of declination letter be filed with the service member’s election
certificate.  The defendant failed to produce such a letter or other
sufficient evidence to show the plaintiff had been notified of the service
member’s declination.  Under those circumstances, the Court accepted as
true the plaintiff’s allegation that the defendant did not comply with the
notice requirement section of the statute and granted the plaintiff’s
motion for summary judgment.

DISCUSSION AND CONCLUSIONS:

1.  At the time the FSM made his decision to decline participation in the
SBP, spousal notification and concurrence were required.

2.  The DA Form 4240 indicates that the applicant was notified by letter on
1 March 1993 of the FSM’s declination of the SBP; however, a copy of the
letter is not available.  Moreover, the date of the letter predates the
FSM's SBP declination on 12 April 1993.  The lack of evidence indicating
that the applicant was, in fact, served with the notification letter, and
the inability to determine whether she was properly counseled as required
by the statute, support the applicant's contentions that she was not
notified or counseled regarding the FSM’s declination to enroll in the SBP.
 More importantly, even if the applicant had been notified, there is no
evidence showing she concurred with the FSM's declination decision.  These
circumstances establish the probability of legal error, and as such, relief
should be granted.

3.  The Board concludes that an injustice has occurred in this case.
Therefore, in view of the foregoing, the FSM’s records should be corrected
to show that the FSM elected to participate in the SBP for spouse coverage,
full base amount, on 12 April 1993.

BOARD VOTE:

__LDS___  __JTM__  __JLP___  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 elected to participate in the SBP for spouse
coverage, full base amount, on 12 April 1993;

      b.  the applicant be advised that the Defense Finance and Accounting
Service will be instructed to collect all SBP premium costs due, effective
from the date of the FSM's retirement from the U.S. Army on 1 January 1994
through the date before his date of death; and

      c.  that the applicant be paid an annuity based upon the FSM’s
election to participate in the SBP retroactive to 30 July 2005, the date of
his death.




                                  ____Linda D. Simmons____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050017526                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060822                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19931231                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 12                  |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |137.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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