RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 May 2007
      DOCKET NUMBER:  AR20060015885


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 did not
request termination of his participation in the Survivor Benefit Plan
(SBP).

2.  The applicant states that she signed the SBP form dated 17 October
2002, but she failed to read the explanation.  For all their years
together, she believed she would be the beneficiary of the FSM’s military
retirement.  She would have never knowingly signed away money that would
benefit her life and her children’s future.

3.  The applicant states in the years she was married to the FSM she did
not work outside the home because they were always attending schools that
were necessary to further his military career.  In 1968, the FSM began his
own Accounting business.  She helped run the business by making
appointments, answering phones, and typing.  He was also employed full time
by Ingalls Shipbuilding, and he continued to honorably serve with his
military unit until 1994.

4.  The applicant states that in the late 1990s the FSM learned he was
seriously ill.  The FSM was in the hospital the week of their daughter’s
wedding in May of 2003, but the doctors released him for the wedding.
After he got home from the hospital, he told her they needed to talk about
money.  He told her she would receive social security and a small annuity.
He assured her that would be sufficient for her needs.  She asked about his
military benefits, and he told her she would not receive survivor benefits
because she had signed the form.  Her reaction was shock and disbelief.  In
their business, they often went to their bank to have papers signed and
notarized and most of the time she never read them. She found it very hard
to believe she would sign away something she believed would be so necessary
in her life.

5.  The applicant states she is ill with heart problems and takes 15
medications per day.  She states the FSM was a fine man, a wonderful
husband, father, and friend, and he provided well for his family.  His
children are educated and have good spouses and jobs.  She believes it
would be an injustice for a man who so admirably served his country for
nearly 40 years to pass away and his family to be left without military
retirement benefits.

6.  The applicant provides a DD Form 2656-2 (Survivor Benefit Plan (SBP)
Termination Request); a letter dated 7 July 2000; a Statement of Intent
dated      6 November 1978; a DD Form 1883 (Survivor Benefit Plan Election
Certificate) dated 26 September 1981; a Summary of Retired Pay Account
dated 24 August 2000; the FSM’s retirement orders; a letter from the
Defense Finance and Accounting Service dated 24 August 2000; Army National
Guard separation orders dated 1 November 1993; a National Guard Bureau Form
22 (Report of Separation and Record of Service) for the period ending 4
November 1993; and the FSM’s death certificate.

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 14 August 1940.  He married the applicant on 2 July
1960.  After having had prior service, he accepted a commission in the Army
National Guard on 20 July 1963.

2.  On 6 November 1978, the FSM signed a Statement of Intent signifying his
intent to participate in the Reserve Component SBP (RCSBP) for option C.
On 26 September 1981, he completed a DD Form 1883 enrolling in the RCSBP
for spouse and children coverage, full base amount, option C.

3.  The FSM was promoted to Colonel, O-6 on 4 November 1988.  On
     4 November 1993, he was transferred to the Retired Reserve.  On 14
August 2000, he was placed on the retired list.  In a Summary of Retired
Pay Account dated 24 August 2000, he was informed his RCSBP costs would be
$232.02 monthly with an annuity payable in the amount of $1,008.74.

4.  On 17 October 2002, the FSM completed a DD Form 2656-2 terminating his
participation in the SBP.  The applicant signed this form in section IV
(Spouse Concurrence), certifying “By my signature, I certify that I am the
legal spouse/former spouse of the above listed retiree.  I have read and
understand the disadvantages and advantages of this decision, as listed on
the front of this form.  I understand that I will receive no SBP benefits
upon the death of my spouse/former spouse. I concur with the decision to
terminate participation in SBP and have signed this statement of my free
will.  I further understand that once my spouse/former spouse discontinues
participation in SBP, he/she cannot reenter the Plan.”

5.  The FSM died on 7 September 2003 of sepsis due to chronic liver
failure.

6.  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.

7.  Public Law 105-85, enacted 18 November 1997, established the option to
terminate SBP participation.  Retirees have a one-year period, beginning on
the second anniversary of the date on which their retired pay started, to
withdraw from the SBP.  The spouse’s concurrence is required.  No premiums
will be refunded to those who opt to disenroll.  The effective date of
termination is the first day of the first calendar month following the
month in which the election is received by the Secretary concerned.

DISCUSSION AND CONCLUSIONS:

1.  All of the applicant’s contentions have been carefully considered.
However, the heading on the DD Form 2656-2 clearly indicated its title,
“Survivor Benefit Plan (SBP) Termination Request.”  It is regrettable that
the applicant may have signed the form without reading it; however, there
is no evidence to show that it was not the FSM’s considered decision that
he and his family would be better off without the SBP or that the applicant
did not concur with his decision.  From the applicant’s statement, it
appears the FSM was mentally competent at the time and, as it appears he
had considerable accounting skills, was also otherwise competent to make
such a financial decision.  It also appears the applicant was mentally
competent to concur with his decision.

2.  Regrettably, there is insufficient evidence that would warrant granting
the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__klw___  __phm___  __ksj___  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.




                                  __Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015885                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070510                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |137 04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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