RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 February 2007
      DOCKET NUMBER:  AR20060009018


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |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, in effect, that the records of her deceased
spouse, a former service member (FSM), be corrected to show she was married
to him at the time he retired and at the time of his death and that he
elected to participate in the Survivor Benefit Plan (SBP) for spouse
coverage.

2.  The applicant states the FSM’s DA Form 4240 (Data for Payment of
Retired Army Personnel) incorrectly shows his marital status as single.
She states she and the FSM had been married since July 1962.

3.  The applicant provides a 2 October 2006 letter from her attorney; a 29
July 2005 letter from her attorney to the Defense Finance and Accounting
Service (DFAS); an 18 May 2005 letter from her attorney to DFAS; a 19 March
1990 letter from the FSM to the U. S. Army Reserve Personnel Center
(ARPERCEN); the FSM’s DA Form 4240; a Summary of Retired Pay Computation,
dated 3 July 1990; their marriage certificate; and the FSM’s death
certificate.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the FSM’s DA Form 4240 be corrected to show that
the FSM was married to the applicant and that, in effect, the FSM elected
to participate in the SBP for spouse coverage.

2.  Counsel states that the applicant is the surviving spouse of the FSM.
The FSM submitted the DA Form 4240 without the knowledge and consent of the
applicant, his legal spouse.  The applicant should not be adversely
affected by any inaccuracy of Army records.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 28 April 1930.  After having had prior enlisted
service, he was commissioned on 20 January 1951 and entered active duty on
that date. He was released from active duty on 17 September 1953 and
transferred to the   U. S. Army Reserve.

2.  The FSM and the applicant married on 7 July 1962.

3.  On 10 October 1965, the FSM completed a DA Form 1041 (Election of
Options under Retired Serviceman’s Family Protection Plan (RSFPP)) and
elected to participate in the RSFPP for spouse and children coverage.

4.  On 1 June 1980, the FSM was assigned to the Retired Reserve.

5.  In a letter from the Court of Common Pleas of Lancaster [PA] County,
dated   8 December 1981, the Court informed ARPERCEN that the FSM had
recently been found guilty of the charges of simple assault and criminal
mischief.  The offenses involved assaultive behavior by the FSM towards his
wife (the applicant), and the letter noted that he had acted out in a
physically assaultive manner on other occasions in the past.

6.  The FSM turned age 60 in 1990.  On 19 March 1990, he completed a DA
Form 4240.  The form indicated that he was single and that he declined SBP
coverage.  When he signed the form, he certified that he was not making any
false statements and that he could be fined and/or be imprisoned if he did.
 The FSM forwarded this form to ARPERCEN with a cover letter dated 19 March
1990.

7.  The FSM died on 1 June 2004.  His death certificate indicated he was
married to the applicant.

8.  On 15 December 2006, the Board analyst forwarded a letter to the
applicant and her attorney requesting evidence, such as Federal tax returns
or joint bank statements, which shows the applicant was still married to
the FSM at the time of his death in June 2004 and at the time he became
eligible for retired pay in April 1990.

9.  Counsel responded by sending duplicates of the evidence previously
sent. Counsel contended, in effect, that the marriage certificate was proof
that the applicant was married to the FSM in April 1990 and that the death
certificate was proof that she was married to the FSM at the time of his
death.  He also provided a Homeowner [Property Tax] Notice from the
Hempfield School District, dated  30 December 2005, and addressed to the
FSM and the applicant care of Jarl F___; two 2006 – 2007 Real Estate Tax
Notices, both dated 31 December 2006, and both addressed to the FSM and the
applicant care of Jarl F___; and an Application for Widow’s or Widower’s
Insurance Benefits [Social Security], dated 9 November 2004.

10.  Counsel correctly pointed out that the applicant made a statement in
her Social Security Benefits Application, under penalty of perjury, that
she and the FSM were married from 1962 until his death in 2004.

11.  Public Law 87-381, enacted 4 October 1961, changed the Uniformed
Services Contingency Option Act (USCOA) to the RSFPP.  The RSFPP provided
for an annuity of one-half, one-fourth, or one-eighth of the member’s
reduced retired pay to a person dependent on the member at the time of his
or her retirement.

12.  Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and
established the SBP.  The RSFPP did not rollover into the SBP.  The SBP
provided that military members could elect to have their retired pay
reduced to provide for an annuity after death to surviving dependents.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant and her counsel have been carefully
considered.

2.  The FSM and the applicant married in July 1962.  There is evidence of
record to show he was married to the applicant in December 1981, when he
was convicted of assaultive behavior towards her.

3.  However, when the FSM completed his DA Form 4240 in March 1990, he
indicated he was single.  He certified the statements made on the form with
his signature, under penalties of perjury.

4.  Unfortunately, the 8 December 1981 letter from the Court of Common
Pleas of Lancaster, PA County could be indicative of either:  (1) the FSM
and the applicant were still married when the FSM completed the DA Form
4240, but he was of the temperament that he would maliciously falsely
indicate he was single; or (2) he was of the temperament that either he or
the applicant would initiate divorce proceedings soon after December 1981
and that he and the applicant (notwithstanding the information on the FSM’s
death certificate) were not married when he completed the DA Form 4240.

5.  Unfortunately, the marriage certificate showing the FSM and applicant
married in 1962 is not evidence that they were still married in 1990.  The
death certificate is not sufficient evidence to show they were married at
the time of the FSM’s death.  It only shows that someone (a son) informed
the office that prepared the death certificate that she was married to him.


6.  The three tax notices are not sufficient evidence to show the applicant
was married to the FSM at the time of his death.  The FSM died in June 2004
and the tax notices are dated 30 December 2005 and 31 December 2006.  Since
it appears the office that sent the notices was not aware the FSM had died,
because it had not updated its records to reflect this, it cannot be
determined if the notices also incorrectly indicated the FSM and the
applicant were married.

7.  Also unfortunately, it is not unknown for an individual to divorce his
or her spouse and for that spouse not to be aware of the divorce.
Admittedly, this situation usually occurs when the spouses are separated.

8.  The Application for Widow’s or Widower’s Insurance Benefits was just
that, an application, and not verification that the Social Security
Administration determined that the applicant was in fact the FSM’s widow.

9.  Particularly at issue is the FSM’s DA Form 4240 (his statement that he
was single in 1990) versus the applicant’s Social Security Benefits
Application (her statement that they were continuously married from 1962 to
2004).  Both are sworn statements, in effect, because they were made under
penalty of perjury.  However, in favor of the FSM’s statement is the
presumption of administrative regularity applied to all Board cases.  The
applicant carries the burden of proof and, in view of the evidence provided
so far, she has not yet met that burden and overcome the presumption of
administrative regularity.  Therefore, additional evidence, apart from her
statement, is needed to independently corroborate that she and the FSM were
married in 1990 (and at his death).

10.  Regrettably, in the absence of the evidence requested by the Board
analyst on 15 December 2006 or documentation showing the Social Security
Administration has determined that the applicant is the FSM’s widow, there
is insufficient evidence that would warrant granting the relief requested
at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jea___  __jlp___  __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.




                                  __James E. Anderholm_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009018                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070206                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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