IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080000502 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel and remains silent.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Attorney, as counsel for the applicant, requests, in effect, reconsideration of the applicant's earlier request to the Army Board for Correction of Military Records (ABCMR), in reference to case number AR20060009018.  

2.  Counsel states that on 12 February 2007, the Board denied the applicant's request to correct her deceased husband's, a former service member's (FSM), military records to show her entitlement to benefits under the Reserve Component Survivor Benefit Plan (RCSBP), under Public Law 95-397.

3.  Counsel states the following new evidence, unavailable and not in the possession of the applicant at the time of application, is submitted to the Board and proves undeniably that the applicant is the surviving spouse of the FSM; that she was married to the FSM at the time of his death; that no divorce between the FSM and applicant had ever been granted; and that the United States Government recognizes that the applicant is the FSM's widow and was entitled to all appropriate benefits.

4.  Counsel provides a copy of a letter from the Social Security Administration; a copy of a Receipt of Unpaid Compensation of the Deceased FSM, from DFAS (Defense Finance and Accounting Service); a copy of a letter from the Arlington National Cemetery; a copy of a letter from the Lancaster County Prothonotary; copies of land deeds issued to the FSM and the applicant; and several copies of affidavits from the FSM and the applicant's four children, in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20060009018 on 6 February 2007.

2.  The Board concluded, in the FSM's earlier case, that the FSM completed his DA Form 4240 (Data for Payment of Retired Army Personnel) in March 1990 and he indicated he was single.  He certified the statements made on the form with his signature, under penalties of perjury.

3.  At the time of consideration of the applicant's request, at issue was 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).  Additional evidence was needed to independently corroborate that she and the FSM were married in 1990 and continued to be so until his death.

4.  The previous Record of Proceedings shows there was insufficient evidence that would warrant granting the relief requested at that time and so the applicant's request was denied.

5.  Counsel now provides new evidence and asks that the Board promptly correct its records and provide the appropriate survivor benefits to which the applicant is entitled by Public Law 95-397.  Benefits should be cumulative and retroactive to and effective from 1 June 2004, the date of the FSM's death.

6.  The applicant provided a copy of a letter from the Social Security Administration, Notice of Award, Retirement, Survivors and Disability Insurance, dated 16 November 2004.  It states that the applicant was entitled to a monthly widow's benefit beginning in November 2004.  She was also entitled to a Social Security payment of $255.00 because of the death of the FSM, her husband.  

7.  The applicant provided a copy of a Receipt of Unpaid Compensation of the deceased FSM, from DFAS, dated 12 July 2006.  DFAS informed the applicant that she would receive a treasury check in the amount of $54.17 on behalf of the decedent FSM, which represents unpaid pay and allowances to which he was entitled up to the date of his death.
8.  The applicant provided a copy of a pass from Arlington National Cemetery, which allows her access to visit the FSM's final resting place.   

9.  The applicant provided a copy of letter from the Lancaster County Prothonotary stating that although a case was filed, it was terminated and no divorce was ever finalized. 

10.  The applicant provided copies of land deeds issued to the FSM and the applicant, which show that they had paid property taxes since 1963 on property they jointly owned. 

11.  The applicant provided copies of affidavits from the FSM's and the applicant's four children declaring that their parents had been married from the time of their births to their father's death.  

12.  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.  Elections are made by category, not by name, and are irrevocable except as provided for by law.

13.  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 member's 60th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant's argument and new evidence were considered by the Board.  

2.  The evidence provided clearly shows that the FSM and the applicant were still married on the date he completed his DA Form 1041 (Election of Options under Retired Serviceman's Family Protection Plan (RSFPP), his DA Form 4240 (Data for Payment of Retired Army Personnel), and on the date of his death, of 1 June 2004.

3.  The evidence shows that the applicant may have maliciously and falsely indicated that he was single, when in fact, he was still married in order to deprive his spouse of an annuity under the SBP.  
4.  At the time of the FSM's retirement, he was in fact married to the applicant.  It appears that through deception and the answers provided on the DA Form 4240, the applicant, his spouse, was not notified or counseled regarding the FSM's declination of SBP.

5.  Based on the FSM's lack of honesty and the fact that FSM was married at the time of his retirement, it appears the applicant was automatically covered under SBP because she did not concur with what was in effect his election of, "no spouse coverage."  Therefore, in the interest of justice, fairness, and equity, the applicant is entitled to an SBP annuity to be effected on the date of the FSM's death.  The applicant is advised that the DFAS will make a debt collection for those annuity premiums that have not been collected, based on the FSM's dishonesty.  SBP premiums will be withheld from the applicant's SBP annuity until all premiums in arrears have been collected.

BOARD VOTE:

___x____  ___x____  ___x____  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 amendment of the ABCMR’s decision in Docket Number AR20060009018, dated 6 February 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  correcting the FSM's DA Form 4240 to show that he elected to provide his spouse, the applicant, an annuity at the full base amount under the SBP in March 1990;

      b.  correcting the record to show that the FSM's request was received and processed by DFAS in a timely manner;



	c.  having DFAS withhold SBP premiums from any entitlements due the applicant to be applied to the debt for uncollected SBP premiums in arrears from the date of the FSM's retirement to the date of his death before the applicant collects any SBP; and

	d.  paying the applicant an annuity based on the above corrections retroactive to the date of the FSM's death, 1 June 2004.




       _    ___x____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080000502



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ABCMR Record of Proceedings (cont)                                         AR20080000502



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