RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060011584 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. Thomas M. Ray

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. James R. Hastie

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 her name is on the DA Form 4240 (Data for Payment of Retired Army Personnel) declining SBP, but that it is not her signature on the form.

     a.  The applicant also states, in effect, that immediately after her husband's death, she contacted the Retirement Services Office at Fort Sill, Oklahoma, concerning survivor benefits and was told that she had signed documents acknowledging the FSM's declination of SBP spouse coverage.  She further states, in effect, that she spoke with a representative at the Department of Veterans Affairs (VA) in Little Rock, Arkansas, and was given a telephone number to call to request a copy of the SBP documents.  The applicant states that after receiving the DA Form 4240, she immediately recognized the signature was not hers.  She continued her efforts to seek assistance from the VA, but was not successful in receiving answers to her questions.

     b.  The applicant adds, in effect, when her brother-in-law retired from the U.S. Army and moved to Arkansas.  He provided her information concerning required SBP counseling and notification procedures and advised her to contact this Agency.

3.  The applicant provides two self-authored statements, dated 19 July 2006; Arkansas, Department of Health, Division of Vital Records, Certificate of Death, #95.001539, dated 2 February 1995; and a partial copy of a DA Form 4240 (Data for Payment of Retired Army Personnel), dated 17 April 1978.

CONSIDERATION OF EVIDENCE:

1.  The FSM’s military service records show that he enlisted in the Army National Guard on 17 February 1955 and entered active duty in the Army of the United States on 11 December 1957.  He reenlisted in the Regular Army on 9 May 1958 and continued to serve on active duty until he was honorably released from active duty on 30 April 1978 after completing a total of 20 years, 4 months, and 20 days.  The FSM was placed on the Army retired list, effective 1 May 1978.

 2.  The date of the FSM's marriage to the applicant is not known.

3.  The FSM's military service records contain a copy of a completed DA Form 4240 (Data for Payment of Retired Army Personnel), dated 17 April 1978.  Part IV (Survivor Benefit Plan Election) of the DA Form 4240 shows that the FSM declined SBP coverage.  Part VIII (Certification) of the DA Form 4240 shows that the FSM signed the document and that it was witnessed by a U.S. government official of the Adjutant General (AG) Transfer Point, B______ S. L_____.  Part IX (Survivor Benefit Plan Certificates) shows the entry "I, the spouse of MSG Odis V. Glover, have been fully informed and counseled concerning the options available under the Survivor Benefit Plan for a survivor annuity.  I understand the decision which has been made and is reflected on the reverse of this certificate." This document also shows that the SBP Certificate was signed by "A________ G_____"; witnessed by the U.S. government official, B______ S. L_____;  and dated 17 April 1978.

4.  The FSM died on 20 January 1995.  The Certificate of Death shows, in pertinent part, that the applicant was married to the FSM at the time of his death.

5.  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.

6.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-3 of this Army regulation provides guidance on who may apply.  It states, in pertinent part, that depending on the circumstances, a child, spouse, parent or other close relative, heir, or legal representative (such as a guardian or executor) of the Soldier or FSM may be able to demonstrate a proper interest.  Applicants must send proof of proper interest with the application when requesting correction of another person's military records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the records of the FSM should be corrected to show he elected to participate in the SBP for spouse coverage because the signature in Part IX of the DA Form 4240, dated 17 April 1978,
is not hers and appears to be a forgery.  As a result, the applicant contends, in effect, she was not notified of the FSM's declination of SBP spouse coverage, nor informed and counseled concerning the options available under the SBP for a survivor annuity, as required by law.

2.  The evidence of record shows that the FSM declined SBP coverage on the DA Form 4240 and certified his declination with his signature on 17 April 1978.  The applicant does not provide any evidence that shows the FSM was given erroneous information concerning SBP coverage.

3.  At the time the FSM made his SBP decision, in those cases when the member elected not to participate in the SBP, to participate at less than the maximum coverage, or to exclude the spouse by designating children only as beneficiaries, it was required that the spouse was to be made aware of the member's decision and of the implications of that decision as it affected the spouse's future welfare.

4.  The evidence of record shows that A________ G_____ signed the DA Form 4240 on 17 April 1978.  The signature on the DA Form 4240 was compared to the signatures on the DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) and the two self-authored statements the applicant submitted with this case.  Although more than 28 years have passed since the DA Form 4240 was signed, the signature of A________ G_____ in Part IX of the form and the signatures on the documents submitted in this case by the applicant appear to be similar.  Therefore, in the absence of substantive evidence that the applicant was not informed of the SBP options and effects by the U.S. government official at the time and that the signature on the DA Form 4240 is a forgery of the applicant's signature, there is insufficient evidence to support her claim.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___TMR__  ___JCR_  ___JRH _  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.




        _Thomas M. Ray____
          CHAIRPERSON



INDEX

CASE ID
AR20060011584
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/01
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19780430
DISCHARGE AUTHORITY
AR 635-200, Chapter 12
DISCHARGE REASON
Sufficient Length of Service for Retirement
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
137.0200.0000
2.

3.

4.

5.

6.