IN THE CASE OF:	  

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090014398 


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 entitlement to an annuity under the Survivor Benefit Plan (SBP).

2.  The applicant states, in effect, that the signature in item 35 (signature of spouse) on page 4 of the DD Form 2656 (Data for Payment of Retired Personnel) is not her signature and that the signature of her son in item 38 (signature of witness) is also forged.  The applicant states she was not aware of this situation until after her spouse, a deceased former service member (FSM), died.

3.  The applicant provides a copy of page 4 of the DD Form 2656, copies of a marriage and death certificate, and a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), witnessed by a VA officer, attesting to the applicant's and her son’s signatures.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the FSM, a member of the United States Army Reserve, was notified in December 1993 that he had completed sufficient service for eligibility for retired pay at age 60 (20 year letter).  The FSM was 55 years old at the time.  Documents in his file indicate that he failed to submit the Reserve Component SBP (RCSBP) DD Form 1883 (Election Certificate) within 90 days after receiving his 20 year letter and as such was not able to enroll in the SBP until he reached age 60 and applied for retired pay.

2.  On 2 September 1998, 6 days prior to attaining age 60, the FSM executed his application for retired pay and completed his DD Form 2656.  He indicated that he was married but he had no dependent children.  The FSM indicated in
item 28 (beneficiary category) that he elected not to participate in SBP.  Item 35 (signature of spouse) allegedly reflected the signature of his spouse (Jeanette, the applicant) indicating that she concurred with the SBP election made by her spouse.  Item 38 (signature of witness) allegedly reflected the signature of the FSM’s oldest son (Angelo, age 37 at the time).

3.  On 6 January 2007 the FSM died.  He was 69 years old at the time.

4.  In July 2009 the applicant was informed by Defense Finance and Accounting Service (DFAS) that SBP entitlement could not be awarded because they were unable to determine if the applicant’s signature on the SBP election form was authentic.  DFAS indicated they had contacted the person listed as her witness but had not received a reply.  As such, DFAS informed the applicant that she could petition this Board as recourse.

5.  The applicant’s signature, as reflected on her application to this Board, the marriage certificate provided in support of her application, and the VA officer’s witness statement, is inconsistent with the signature reflected in item 35 of the DD Form 2656.  The signature of the FSM’s son, reflected in item 38 as the witness to his mother’s signature on the DD Form 2656, is also not consistent with his signature as reflected on the VA Form 21-4138 provided by the applicant in support of her request to this Board.

6.  The signatures in item 35 and 38 of the DD Form 2656, and in particular the writing of the last name, however, are consistent with the FSM’s signature on a variety of documents contained in his OMPF (Official Military Personnel File).

7.  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.  At the time, a member must have made the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else have waited until he/she applied for retired pay and elected to participate in the standard SBP.


8.  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 provided less than maximum spouse coverage.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant provides page four of a DD Form 2656 dated 2 September 1998 which shows the FSM elected not to participate in the SBP.  That form was signed by the FSM and allegedly reflects the signature of the applicant and the signature of the FSM’s oldest son.  

2.  However, the applicant’s signature is distinctly different from other documents she signed and which she provided to the Board as evidence, including the signature witnessed by the VA official.  In addition, the applicant’s signature, the signature of the witness, and the FSM’s signature, particularly the writing of the last name, appear to be the same handwriting on the DD Form 2656.

3.  While the Board’s staff does not employ a handwriting analyst, it is apparent by the similarity of the writing in the applicant’s and the FSM’s signature on the DD Form 2656 that the applicant did not sign the DD Form 2656 acknowledging that her spouse, the FSM, had declined participation in the SBP at the time he applied for retired pay in 1998.

4.  In view of the foregoing, the FSM’s records should be corrected to show that the applicant did not sign the DD Form 2656 in question and as such should be entitled to benefits under the SBP retroactive to the death of her spouse on 
6 January 2007.

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 a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant did not sign the DD Form 2656 concurring with the FSM’s decision not to participate in the SBP, and as a result of this correction, paying the applicant SBP benefits (less money owed for SBP premiums) from the date of the FSM’s death.



      _______ _ 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)                                         AR20090014398



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ABCMR Record of Proceedings (cont)                                         AR20090014398



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