IN THE CASE OF:
BOARD DATE: 17 December 2009
DOCKET NUMBER: AR20090008905
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, in effect, that the military records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP) for spouse coverage and that she be paid the SBP annuity.
2. The applicant states that she does not remember signing the DD Form 2656 (Data for Payment of Retired Personnel) declining enrollment in the SBP. She believes there was an error or someone else signed the DD Form 2656.
3. The applicant provides a copy of the FSM's death certificate and their marriage certificate in support of her application.
CONSIDERATION OF EVIDENCE:
1. The FSM was born on 29 July 1932. After having prior service as an enlisted Soldier, the FSM was appointed as a Reserve commissioned officer on 27 July 1960.
2. The FSM's notification of eligibility for retired pay at age 60 (20-Year Letter) is dated 14 February 1987.
3. The FSM and the applicant were married on 27 June 1987.
4. The FSM reached age 60 on 29 July 1992 and he applied for retired pay.
5. The FSM was retired and placed on the retired list on 31 July 1992. On 5 October 1992, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) and declined to participate in the SBP. In Part V (SBP Election) on this form, he indicated that he was married and did not have dependent children. The applicant signed Part VII (SBP Certificates) acknowledging that she had been fully informed and counseled concerning the options available under the SBP for a survivor annuity. She also acknowledged that she understood the decision the FSM had made in Part V of the certificate.
6. The FSM died on 27 March 2009. His death certificate shows his marital status as married and lists the applicant as spouse.
7. 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.
8. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than maximum spouse coverage. Neither spousal concurrence or notification is required when a member fails to enroll in the SBP during an open season.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that she does not remember signing the DD Form 2656 declining enrollment in the SBP and she believes there was an error or someone else signed the DD Form 2656. However, the evidence of record shows the applicant signed a DA Form 4240, the form in effect at that time, concurring with FSM's decision to decline enrollment in the SBP.
2. The FSM retired on 31 July 1992. He was married to the applicant at that time; however, he elected not to participate in the SBP and the applicant concurred in his decision.
3. There is no evidence to show the FSM attempted to enroll in the SBP during an open season.
4. Regrettably, 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
____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.
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