IN THE CASE OF:	 

		BOARD DATE:	    5 June 2012

		DOCKET NUMBER:  AR20110024109 


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 reconsideration of her previous application for correction of the military record of her deceased spouse, a former service member (FSM), to show he enrolled in the Survivor Benefit Plan (SBP) for spouse coverage and to be paid the SBP annuity.  She also requests, in effect, a personal appearance before the Board.

2.  She states she has new evidence.  Specifically, she states her daughter, who was 10 years of age at the time, has told her she remembers her asking the FSM questions about signing the SBP election.  Her daughter recalls her (the applicant) asking the FSM what she was signing and stating she did not sign anything she was not sure about.  The FSM said "women just sign the form" and said it had something to do with his retirement.  She trusted her husband, so she signed the form with no knowledge that she was signing away spouse benefits.  She also states that while the FSM may have been counseled by a retirement services officer (RSO) regarding the SBP, she was not.  She feels some type of letter should have been sent to her regarding this matter at the time.  Her daughter is her proof that the form was signed in their home and there was no RSO present.

3.  She provides a self-authored letter to the Board.



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100012319 on 16 December 2010.

2.  The applicant has submitted a new argument which was not previously considered by the Board.  The new argument warrants consideration at this time.

3.  With prior active service, the FSM enlisted in the Regular Army on 20 January 1975.  He and the applicant were married on an unknown date.

4.  The available records include the FSM's DA Form 4240 (Data for Payment of Retired Army Personnel).

	a.  Part V (SBP Election) provided for making an SBP election.  The heading for Part V included this note:

Your SBP election is irrevocable.  If you are married and elect not to participate or elect less than maximum coverage, your spouse must agree with your election.  If your spouse does not agree, maximum coverage will be established.

	b.  In Part V, he indicated he was married to the applicant and had one dependent daughter.  He declined SBP coverage.

	c.  Part VII (SBP Certificates) provided a block to be completed by the Soldier, which was signed by the FSM, and a block for the spouse's signature as required in cases of married Soldiers electing reduced coverage or declining coverage for a spouse.

		(1)  The applicant provided her signature in Part VII, indicating she had been fully informed and counseled concerning the options available under the SBP for a survivor annuity and she understood and agreed with the decision made and reflected in Part V.

		(2)  To the left of the space provided for the spouse's signature, the form included a note reminding spouses they were not obligated to agree with the election in Part V.

	d.  The form was signed twice by an RSO, as witness to the FSM's certification of the information on the form and in Part VII as the SBP counselor for the FSM and applicant.
	e.  All signatures on the form are dated 2 December 1991.

5.  The FSM retired on 31 March 1992 after completing 20 years, 1 month, and 21 days of active military service.

6.  The FSM died on 5 December 2007.  His death certificate shows he was married to the applicant at the time.

7.  Public Law 92-425, 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.

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 provides less than maximum spouse coverage.

9.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that 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.  Although the applicant indicates she desires to appear before the Board, there are sufficient records available for a fair and impartial review without such an appearance.

2.  The evidence of record shows the applicant signed a DA Form 4240 in December 1991 acknowledging she had been fully informed and counseled concerning the options available under the SBP for a survivor annuity and concurring with the FSM's decision to decline enrollment in the SBP.

3.  Her statement regarding her daughter's memory of the circumstances under which she signed the form was carefully considered.  While her daughter may remember the applicant asking the FSM questions about what she was signing, and while the FSM may have pressured her to "just sign the form," this is not evidence of error or injustice.  There is no evidence to show that it was the DA Form 4240 that the FSM was asking her to sign.  She states she trusted her husband, so she signed the form with no knowledge that she was signing away spouse benefits.  The DA Form 4240 clearly showed the FSM's election and clearly stated she was not obligated to agree with that election.  If she failed to read the form she signed, that is her failure alone.
4.  Her statement that she was not counseled by an RSO was also carefully considered.

	a.  The DA Form 4240 clearly showed the FSM was electing not to participate in a program that would benefit her in the event of his death.  If she desired additional information on SBP, she could simply have refused to sign until she obtained that information.

	b.  Further, the record shows she was counseled.  The RSO signed Part VII certifying all SBP requirements had been met, to include fully informing and counseling the applicant.  There is no evidence corroborating her assertion that this did not happen.

5.  It is understandable that the applicant may now regret her decision to concur with the FSM's election to forego SBP coverage; however, in view of the foregoing, there is no basis for correcting his record to show he elected SBP coverage or for paying her an SBP annuity.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100012319, dated 16 December 2010.



      ___________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)                                         AR20110024109



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ABCMR Record of Proceedings (cont)                                         AR20110024109



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