IN THE CASE OF:
BOARD DATE: 21 July 2009
DOCKET NUMBER: AR20090003505
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 she be granted benefits under the Survivor Benefit Plan (SBP).
2. The applicant states nothing was explained to her when her husband, a former service member (FSM), retired in 1978.
3. The applicant provides:
a. the FSMs death certificate;
b. a copy of her marriage license;
c. a copy of her Uniformed Services Identification Card (front and back); and
d. a copy of a DA Form 4240 (Data for Payment of Retired Army Personnel).
CONSIDERATION OF EVIDENCE:
1. The applicant is the widow of a deceased FSM who retired on 30 January 1978 with more than 22 years of active Federal service. The applicant and the FSM were married on 12 August 1972.
2. When the FSM retired, he completed a DA Form 4240. Part IV (Survivor Benefit Plan Election) shows the FSM stated he was married with dependent children and that he elected to decline SBP coverage (Part IV, Item 15e).
3. Part IX (Survivor Benefit Plan Certificates) of the DA Form 4240 states the following:
I, the spouse of [FSM], 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.
4. The statement is signed by the applicant, dated 23 January 1978, and witnessed by a Department of the Army Civilian military personnel clerk.
5. The FSM died on 20 March 2008.
6. Public Law 92-425, enacted 21 September 1972, established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.
7. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provided less than maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The applicant seeks an SBP annuity as a result of the FSMs death on
20 March 2008. She contends the SBP was never explained to her at the time of the FSMs retirement.
2. The applicant signed Part IX of DA Form 4240 stating she was fully informed and counseled concerning the SBP and the FSMs declination of same. Her signature was witnessed and dated on 23 January 1978.
3. The available evidence shows the applicant knew that the FSM declined SBP coverage and what that declination meant. SBP premiums were never deducted from the FSMs military retirement annuity during his lifetime in retirement.
4. 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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X____ ___X___ 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.
_______ _ 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) AR20090003505
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ABCMR Record of Proceedings (cont) AR20090003505
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