IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100009374 


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, the widow of a former service member (FSM), requests, in effect, correction of his records to show she is entitled to Survivor Benefit Plan (SBP) benefits. 

2.  The applicant states, in effect, that she was an Army wife and mom for 
30 years.  She states the SBP was not properly explained at the time of the FSM's retirement.  She was with her late husband at the time of his appointment and remembers a woman telling them that they had to pay for dental, medical, and SBP.  The woman explained to them that SBP would cost them $349.00 a month for them to receive $1,200.00 a month and if something happened to her, the FSM would get nothing back.  The applicant states it really bothered the FSM so they talked about it and the FSM told her it would be best to figure something else out.  They were young and thought they had many more years together.  The applicant adds she did not realize they were being given incorrect information until her son went to the Judge Advocate (JA) because he could not understand why the applicant got nothing for all the hard work she did standing by her husband throughout his military career.  The applicant adds that the JA told her son that the SBP would have cost them $120.00 per month.  Had they been given the correct information at the time of retirement the FSM would have elected to participate in the SBP.  The applicant concludes that she would like to appear before the Board to present her case.  Army life has been the only life she has known.  She needs the mistake fixed so she can be there for her children and other families in need.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 30 September 2001
* State of Louisiana Certificate of Death, dated 29 July 2008
* Letter of Support, dated 18 November 2009
* Memorandum from the Defense Finance and Accounting Service (DFAS), dated 20 March 2010
* Memorandum from a Congressional Representative, dated 26 March 
2010 
* United States Uniformed Services Dependent ID Card, with an expiration date of 14 September 2013
* FSM's Obituary from the internet with various photographs of him and the applicant along with family members and friends

CONSIDERATION OF EVIDENCE:

1.  The FSM enlisted in the Regular Army on 9 June 1977.  He was promoted to Command Sergeant Major (CSM) on 1 May 1997.  

2.  On 4 May 2001, in connection with his upcoming retirement, the FSM completed a DD Form 2656 (Data for Payment of Retired Personnel).  He indicated that he was married to the applicant and placed an "X" in items 26g electing to decline coverage.  His spouse, the applicant, indicated she had received information that explained the options available and the effect of those options.  She also indicated that she had signed this form of her own free will.  She and a witness authenticated this form by placing their signatures in the appropriate places, on 4 May 2001.

3.  The FSM was honorably retired on 30 September 2001 and was placed on the retired list in his retired rank/grade of CSM/E-9 on 1 October 2001.  The DD Form 214 he was issued shows he completed over 24 years, 3 months, and 
22 days of active military service.

4.  On 13 July 2008, the FSM died.

5.  Item 6 (Surviving Spouse) of the FSM's death certificate shows he was married to the applicant at the time of death.

6.  There is no evidence in the FSM’s DFAS pay records that shows he participated in the SBP and/or contributed any premiums towards the SBP.

7.  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.  This law also provides that every member having a spouse and/or child(ren), who retires/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

8.  Title 10, U.S. Code (USC), section 1448, provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay.  Title 10 USC, section 1448 was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount.  

9.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully
considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.	

2.  The applicant contends that she and the FSM were misinformed on the monthly cost of SBP, but provides no independent evidence that such was the case.  If the FSM had any questions, as a senior noncommissioned officer, he had a responsibility to himself to obtain information concerning the SBP prior to signing any document presented to him.

3.  The available evidence shows that prior to retirement the FSM was provided an opportunity to make an SBP election and he willingly and in writing elected not to participate in the SBP.  His spouse, having been fully informed and counseled concerning the options available under the SBP for a survivor annuity, concurred with this election.  
4.  Unfortunately, the available evidence is not sufficient to support 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.

ABCMR Record of Proceedings (cont)                                         AR20100009374



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ABCMR Record of Proceedings (cont)                                         AR20100009374



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