RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 19 April 2007
DOCKET NUMBER: AR20060011689
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.
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 enrolled in the Survivor Benefit Plan (SBP) for spouse only coverage.
2. The applicant states, in effect, that her husband, the FSM, was killed on
27 October 2005, in an automobile accident. Her husband was a dedicated physician who worked for the State of Oregon at the Snake River Correctional Institution. He was also a retired Reserve colonel. She has been denied the SBP annuity and has been trying for the past 9 months to make the military pay her the annuity to which she should be entitled. As a military wife for many years, she was continually told she was in the Army, too. She has appealed the denial of her SBP annuity on the basis that her daughter signed as a witness and a family member cannot witness this type of document. It is unjust to deny her annuity benefits considering all the years her husband spent away from the family, and her family deserves better than that.
3. The applicant provides a copy of the FSM's DD Form 2656 (Data for Payment of Retired Personnel); a copy of her identification card; a copy of her marriage certificate; and a copy of the FSM's death certificate.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 8 June 1945. He served in the U.S. Army Reserve (USAR) from 25 April 1963 and was transferred to the USAR Retired Reserve on 28 February 1995. He married the applicant on 20 July 1972. He turned 60 on
8 June 2005 and was in receipt of retired pay. The FSM was killed in an automobile accident on 27 October 2005.
2. The FSM's notification of eligibility for retired pay at age 60 (his 20 year letter) is dated 21 September 1991. The letter informed him of his entitlement to enroll in the Reserve Component (RC) SBP and enclosed information and a blank DD Form 1883 (SBP Election Certificate). However, no DD Form 1883 was found in the FSM's records. The FSM completed a DD Form 2656 on 24 July 2003. In Item 26g, Survivor Benefit Plan Election, the FSM elected not to participate in the SBP. On 24 July 2003, the applicant concurred with the FSM, and authenticated the form with her signature in Item 30, which states "I hereby concur with the
SBP election made by my spouse. I have received information that explains the options available and the effects of those options. I know that retired pay stops on the day the retiree dies. I have signed this statement of my free will." The form was witnessed by Sh____ R _____ on 24 July 2003. The applicant states that the witness is her daughter.
3. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age
60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the members 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence of Government error in this case. The FSM, a colonel, elected not to participate in RCSBP and the SBP, and there is no evidence that he did not understand the importance of making a proper and informed decision. The applicant concurred with the FSM's decision not to participate in the SBP. Tragically, this decision was not in the best interest of the FSM's family.
2. As a general matter, the law will not entertain a complaint that a binding legal instrument is void merely because the complaining party asserts that the witness was her daughter or other relative. Affixing a signature to a binding instrument carries a special legal significance that is not easily undermined. The fact that the witness was her daughter does not per se void the election. Based upon the evidence available, there was simply no conflict of interest in her daughter acting as her witness in this instance.
3. 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
__js____ __dkh___ __jgh___ 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 Slone
______________________
CHAIRPERSON
INDEX
CASE ID
AR20060011689
SUFFIX
RECON
DATE BOARDED
20070419
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
(DENY)
REVIEW AUTHORITY
ISSUES 1.
137.0400
2.
3.
4.
5.
6.
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