IN THE CASE OF:
BOARD DATE: 10 May 2012
DOCKET NUMBER: AR20110019924
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 deceased former service member (FSM), requests correction of her husband's record to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage.
2. The applicant states:
a. in October 2008 she went to Fort Sam Houston and presented her documents (death certificate and marriage license) to receive her husband's retired pay. Shortly thereafter, someone from Fort Sam Houston or the Defense Finance and Accounting Service (DFAS) provided her a DA Form 4240 (Data for Payment of Retired Army Personnel) allegedly signed by the FSM wherein he had declined SBP coverage. This was the first time she had seen this form or had any knowledge that her husband had allegedly declined SBP coverage.
b. the DA Form 4240 recently provided to the applicant is only the first page of the form. The FSM certified the form in section VIII (Certification) but this form is missing the FSM's signature that was witnessed by the Retirement Services Officer (RSO) and is also missing where the RSO certified a date upon which the spouse was notified.
c. in March 2001, the Department of the Army provided her 74 pages of the FSM's official military personnel file. Of the 74 pages of documents provided, there is no evidence to counter her contention she was never advised of her husband's SBP election options nor did she know of or consent to the alleged declination of SBP benefits.
d. three cases previously considered by the board establish the lack of any evidence that the spouse was notified or counseled, coupled with the spouse's denial of such notice was sufficient proof the Department of the Army did not comply with its own regulations, that an injustice incurred, and that the spouse should be eligible to receive retirement benefits as if the deceased service member timely make an election for full spousal retirement benefits.
3. The applicant provides six exhibits outlined in her application.
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 31 May 1951. He married the applicant on 9 May 1952. He remained on active duty through continuous reenlistments.
2. The applicants DA Form 4240, dated 1 May 1980, shows he was married with dependent children and he declined SBP coverage. Part IX (SBP Certificate (Required when married member does not elect full coverage for spouse)) of this form shows the FSM's spouse was not available for counseling and she was informed by letter on 1 May 1980. On 1 May 1980, the applicant was notified by letter of the options available under the SBP and that the FSM elected not to participate in the SBP. She was instructed to sign and return the letter. On
3 May 1980, the applicant signed and returned the letter acknowledging the FSM's election not to participate in the SBP.
3. The FSM retired on 30 June 1980 in the rank of command sergeant major.
4. The FSM died on 29 September 2008.
5. 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. At the time, spousal notification, but not concurrence, was required.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends she was never advised of her late husband's SBP election options nor did she know of or consent to the alleged declination of SBP benefits. However, evidence shows on 1 May 1980 she was notified by letter of the options available under the SBP and that the FSM elected not to participate in the SBP. On 3 May 1980, she signed and returned the notification letter acknowledging her husband's election not to participate in the SBP.
2. The FSM elected not to participate in the SBP on 1 May 1980 and the applicant was notified of his election on 3 May 1980. At the time, there was no requirement that a spouse concur with such an election, thus all requirements of the law were met. 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.
ABCMR Record of Proceedings (cont) AR20110019924
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ABCMR Record of Proceedings (cont) AR20110019924
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