RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 November 2006
      DOCKET NUMBER:  AR20060005952


      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:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 believes the FSM's records
concerning the SBP are in error because she was never counseled 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 to sign Part VIII
(Survivor Benefit Plan Certificates) of the DA Form 4240 (Data for Payment
of Retired Army Personnel) or, in her absence, notify her by letter.  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 SBP premiums would be deducted
from the annuity payments.

3.  The applicant provides a copy of the FSM's DD Form 214 (Report of
Separation from Active Duty), with an effective date of 31 October 1975;
DA Form 4240 (Data for Payment of Retired Army Personnel), dated
15 October 1975; Headquarters, 101st Airborne Division (Air Assault) and
Fort Campbell, Fort Campbell, Kentucky, Special Orders Number 122
(Extract), dated 12 June 1975; DA Form 3891 (Certificate of Appreciation),
dated 31 October 1975; DD Form 363A (Certificate of Retirement), dated 1
November 1975; State of Mississippi, Tishomingo County, Certificate of
Marriage, dated 28 March 1989; and Alabama, Certificate of Death, State
File Number 101, issued 18 April 1996.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 10 April 1996, the date of the FSM's death.  The
application submitted in this case is dated 20 March 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within three years after
discovery of the alleged error or injustice.  This provision of law allows
the Army Board for Correction of Military Records (ABCMR) to excuse failure
to file within the three-year statute of limitations if the ABCMR
determines that it would be in the interest of justice to do so.  In this
case, the ABCMR will conduct a review of the merits of the case to
determine if it would be in the interest of justice to excuse the
applicant’s failure to timely file.

3.  The FSM’s military service records show that he enlisted in the Regular
Army (RA) on 4 August 1948 and served on active duty until 23 June 1952.
He and the applicant married on 2 March 1955.  On 3 May 1958, the FSM
enlisted in the Army National Guard, where he served until 7 October 1959.
The FSM then enlisted in the RA on 8 October 1959, attained the rank of
sergeant first class (SFC)/pay grade E-7, and served continuously until he
was honorably retired from active duty on 31 October 1975.

4.  On 15 October 1975, the FSM completed a DA Form 4240.  Part II
(Survivor Benefit Plan Election) of the DA Form 4240 shows that he declined
SBP coverage.  Part VII (Certification) of the DA Form 4240 shows that the
FSM certified with full knowledge the information appearing on the form by
signing the form.  Part VIII (Survivor Benefit Plan Certificates) of the DA
Form 4240 shows that the applicant was not available for counseling, but
she was informed by letter dated 15 October 1975 of the FSM’s decision.
Only the counselor affixed his signature in Part VIII 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 RA on 1 November 1975,
after serving honorably on active duty for a total of
20 years, 1 month, and 1 day and completing 21 years, 4 months, and 18 days
total service for pay.  The FSM died on 10 April 1996.  The Certificate of
Death shows, in pertinent part, that the applicant was married to the FSM
at the time of his death.

5.  In the processing of this case, coordination was made with the Defense
Finance and Accounting Service (DFAS), Retired Pay Branch, Cleveland, Ohio,
in order to verify information relevant to the FSM's SBP election and
spousal notification.  This coordination resulted in no record of the FSM's
participation in the SBP, nor any SBP spousal notification documentation
being on file.

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.

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.  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,
but the statutory requirement applies to all military services.  The
plaintiff (the FSM's widow and child) submitted an affidavit that
categorically stated they did not receive the required notice.  The
defendant (the government) failed to produce a notice, 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 unrebutted allegation that the defendant did not
comply with the notice requirement section of the statute and granted the
plaintiff’s motion for summary judgment.  The U.S. Court of Appeals for the
Federal Circuit later affirmed the Court of Claims' interpretation of the
SBP.

DISCUSSION AND CONCLUSIONS:

1.  At the time the FSM made his decision to decline participation in the
SBP, spousal concurrence was not required.  Spousal notification only was
required.

2.  The DA Form 4240 indicates that the applicant was notified by letter on
15 October 1975 of the FSM’s declination of the SBP; however, a copy of the
letter is not available.  The applicant signed the DD Form 149 asserting
she never received it.  The lack of evidence indicating that the applicant
was, in fact, served with the notification letter, and the inability to
verify 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.  These circumstances
establish the probability of legal error, meaning the Army's apparent
failure to comply with the statutory requirement of spousal notification
then in effect.  The applicant's assertion of failure to provide notice has
not been effectively rebutted by the evidence.  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 15 October 1975.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 April 1996; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
9 April 1999.  The applicant did not file within the three-year statute of
limitations; however, based on the available evidence and argument, it
would be in the interest of justice to excuse failure to timely file in
this case.

BOARD VOTE:

___TAP__  __PBF__  __LMD __  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:

      a.  all Department of the Army records of the individual concerned be
corrected by showing that the FSM elected to participate in the SBP for
spouse coverage, full base amount, on 15 October 1975;

      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 November 1975
through the date before his date of death; and

      c.  the applicant be paid an annuity based upon the FSM’s election to
participate in the SBP retroactive to 10 April 1996, the date of his death.




                            _____Thomas A. Pagan_____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005952                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061121                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19751031                                |
|DISCHARGE AUTHORITY     |Title 10, USC, Section 3914             |
|DISCHARGE REASON        |Length of Service for Retirement        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.0100.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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