IN THE CASE OF:
BOARD DATE: 24 June 2008
DOCKET NUMBER: AR20080002935
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:
1. The applicant requests that the records of her deceased spouse, a former service member (FSM), be corrected to show that he elected to participate in the Survivor Benefit Plan (SBP).
2. The applicant states that the FSM elected to decline SBP. However, she did not sign Part VII (Survivor Benefit Plan Certificates), item b.24. (Required When Married Soldier Elects Reduced Coverage or Declined Coverage for Spouse) of the DA Form 4240 (Data for Payment of Retired Army Personnel) concurring to that decision.
3. The applicant further states, "Please correct his military record to indicate the election to spouse only based on full gross retirement pay. I understand that I will be responsible for the SBP payments from 1992-2005 before I begin drawing the SBP."
4. The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 31 December 1991; a DA Form 4240, dated 23 December 1991; a DA Form 3713 (Data for Retired Pay), dated 21 December 1991; a DA Form 4187 (Personnel Action), dated
4 November 1991; a DA Form 2339 (Application for Voluntary Retirement), dated 21 November 1991; 5th Personnel Service Company Orders 233-170, dated
25 November 1991; a State of Pennsylvania Marriage Certificate, dated 19 April 1968; and a Certificate of Death/State of West Virginia, dated 1 April 2005.
CONSIDERATION OF EVIDENCE:
1. The FSM had prior military service. He enlisted in the Regular Army on
23 July 1973.
2. A Forces Command (FORSCOM) Form 1004-2-R (Statement of Spousal Concurrence), dated 26 November 1991, shows that the applicant signed and checked the box on the form to concur with the FSM's SBP election of no survivor coverage for spouse or children.
3. The FSM's DA Form 4240, dated 23 December 1991, shows he elected not to participate in the SBP. The form further shows that the spouse concurrence signature section is blank.
4. On 31 December 1991, the applicant retired. He died on 12 March 2005.
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.
6. 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. Evidence of record shows that the FSM completed a DA Form 4240 in December 1991 and elected to decline participation in the SBP. On
26 November 1991, the applicant had signed a statement of spousal concurrence with his election of no SBP coverage.
2. 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
__xx __ __xx__ _ ___xx __ 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.
____ xxxxxxxx __
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) AR20080002935
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