IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20110000719 


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 payment of the Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM).

2.  The applicant states she did not sign the paperwork stating she did not want spousal benefits.  She was not physically present with the FSM when he retired and signed the paperwork.  She had a family emergency at the time and she had to travel to Columbus, GA.

3.  The applicant provides a:

* Marriage License
* Certificate of Death
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he initially enlisted in the Regular Army (RA) on 12 December 1963 and married the applicant on 2 March 1973.  He served through multiple reenlistments in the RA in a variety of stateside and/or overseas assignments, and attained the rank/grade of first sergeant (1SG)/E-8.

2.  On 19 November 1986, the FSM applied for retirement, to be effective 31 August 1987.  

3.  On 26 May 1987, prior to the FSM's retirement, his spouse completed a "Spousal Concurrence Statement" wherein she indicated she concurred with the FSM's election of no survivor coverage for spouse or children.  The form indicated that she received information that explained the options available and the effects of those options.  She and a witness authenticated this form by placing their signatures in the appropriate blocks.

4.  On 27 August 1987, in connection of his retirement, the FSM completed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He indicated that he was married and had dependent children and he elected to decline SBP coverage.  He and a witness authenticated this form by placing their signatures in items 19 (Signature of Member) and 20 (Signature and Address of Witness).

5.  Section VII (SBP Certificates - Required when married member does not elect full coverage or declines coverage for spouse) of the DA Form 4240 indicates that the FSM's spouse, the applicant, and a witness did not sign this form. Additionally, the block that states "spouse not available for counseling:  informed by letter date" is blank.

6.  The FSM was honorably retired on 31 August 1987 and he was placed on the retired list in his retired rank/grade of 1SG/E-8 on 1 September 1987.  

7.  On 23 October 2010, the FSM died.  His death certificate shows he was married to the applicant at the time of death. 

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

9.  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 retired/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.

10.  Title 10 U.S. Code (USC), section 1448, in effect at the time, required notice to a spouse if a member elected not to participate in the SBP.  The statute also 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.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the record of the FSM should be corrected to show that she did not concur with his declination of SBP spouse coverage.  

2.  The applicant’s husband retired effective 1 September 1987.  Just days before his retirement, he completed a DA Form 4240 on which he indicated he had a spouse and two dependent children and that he was declining the SBP coverage.  Although the applicant was apparently not with him at the time he filled out this form, about 3 months earlier she completed a separate page document at Fort Dix, NJ, in which she acknowledged that she knew her husband was electing no coverage for spouse or children, that she had received information about the SBP, and that she was signing the concurrence form of her own free will.  The document was witnessed and there is no evidence this concurrence was withdrawn prior to her husband’s retirement.  During the 
23 years between her husband’s retirement and his death no SBP premiums were paid.

3.  While a concurrence executed on the same form as the retiree’s election require that the concurrence be executed at the same time or after, that requirement is not statutory.  It is driven by practical administrative processing concerns.  If a spouse concurs, but the retiree has not yet made an election, it is not necessarily clear from the form itself that the spouse knew what election was being made when he/she signed the concurrence.  However, when the concurrence is done on a separate document that references the election actually made, it is clear the decision to concur was an informed decision.

4.  There is no Government error and there is no injustice.  She is not entitled to relief either due to law or inequity. 

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)                                         AR20110000719



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ABCMR Record of Proceedings (cont)                                         AR20110000719



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