BOARD DATE: 1 December 2011
DOCKET NUMBER: AR20110012503
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 records of his deceased spouse, a former service member (FSM), be corrected to show that the FSM elected full spouse coverage under the Survivor Benefit Plan (SBP).
2. The applicant states, in effect, that the FSM elected to decline coverage under the SBP and submitted a DD Form 2656 indicating that he (the applicant) agreed with the decision to decline SBP coverage. However, he never signed or saw such a document and contends that a notary fraudulently witnessed his signing.
3. The applicant provides a notarized statement attesting to his signature, copies of the SBP Spouses Concurrence Statement, his marriage license, the FSMs death certificate, and the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant and the FSM were both serving as active duty field recruiters in Toledo, Ohio when they were married in Hinds County, Mississippi on 4 June 1992.
2. The FSM retired on 30 June 2002 and transferred to the Retired List effective 1 July 2002. She had served 20 years and 15 days of active service.
3. The FSM declined SBP coverage. The spouse concurrence statement submitted by the applicant is dated 19 June 2002 and reflects the applicants concurrence with the FSMs decision to decline SBP. The form was notarized and it was accepted by officials at the Defense Finance and Accounting Service (DFAS). Accordingly, the FSM was not enrolled in the SBP.
4. On 21 September 2008, the FSM passed away and the applicant was listed as the FSMs spouse at the time of her death.
5. Title 10, U.S. Code, section 1448, provides, in pertinent part, that effective
1 March 1986, a married member is enrolled in the SBP with spouse coverage based on full retired pay at the time of retirement unless that spouse has concurred in writing to another election requested by the member pursuant to Department of Defense Financial Management Regulation (DODFMR), Volume 7B, chapter 43. When the spouses concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses. Section 1454 states, in pertinent part, that the Secretary of the Military Department concerned (or designee) may correct any election or any change or revocation of an election when the Secretary considers it necessary to correct an administrative error.
6. Army Regulation 15-185 (Army Board for Correction of Military Records) is the regulation under which this Board operates. It provides, in pertinent part, that the Board is not an investigative agency and that the burden of proving an error or injustice by a preponderance of the evidence rests with the applicant.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that the FSMs records should be corrected to show she elected full spouse coverage under the SBP has been noted.
2. The applicant contends that he never saw or signed the spouse concurrence statement declining SBP participation and contends that the notary fraudulently signed the statement witnessing his signature. However, he has failed to provide sufficient evidence to establish that the statement is or was fraudulently obtained, and he has offered no reasonable explanation as to why or how the FSM would have sought to forge his signature and enter into a conspiracy with the witness and notary.
3. Inasmuch as the Board is not an investigative agency and since the applicant has failed to show that the FSMs declination of SBP coverage was not a valid election, there appears to be no basis to grant his 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) AR20110012503
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ABCMR Record of Proceedings (cont) AR20110012503
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