IN THE CASE OF:

		BOARD DATE:  7 August 2012

		DOCKET NUMBER:  AR20120001432 


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, through counsel, reconsideration of her previous request for entitlement to Survivor Benefit Plan (SBP) benefits.

2.  Counsel states the applicant received a copy of the Spousal Concurrence Statement submitted by the deceased FSM at the time of his retirement.  The document was allegedly signed by her and witnessed by her daughter.  Neither the applicant nor her daughter executed the document.

3.  Counsel provides copies of:

* an order from the Court of Common Pleas of Philadelphia County, Pennsylvania, Family Court Division 
* an affidavit from the applicant
* Spousal Concurrence Statement, dated 28 June 1986
* an affidavit from the applicant's daughter
* a letter from the Army Board for Correction of Military Records (ABCMR)  with enclosure Record of Proceedings (ROP) Docket Number AR20110005896

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 AR20110005896 on 1 November 2011.
2.  Counsel provides the following documents as new evidence that warrants consideration by the Board:

* a Findings of Fact and Order of Court, Court of Common Pleas, Philadelphia County, PA, dated 19 December 2011
* page 1 of the applicant's affidavit
* the applicant's daughter's affidavit, dated 7 December 2011

3.  The evidence of record now shows:

	a.  The FSM was serving in the rank/grade of sergeant major (SGM)/E-9 when he retired on 30 June 1986 and was placed on the retired list on 1 July 1986. 

	b.  Copies of documents obtained from the Defense Finance and Accounting Service (DFAS) show that the FSM declined SBP coverage and provided a Spousal Concurrence Statement signed by the applicant on 28 June 1986.  The concurrence statement was witnessed by an individual in Philadelphia, PA at the same address as listed on the applicant's application to the Board.

	c.  On 27 May 1997, the applicant filed for divorce.  The previous consideration of the applicant's case incorrectly stated the divorce was final in May 1998.

	d.  On 17 September 2010, a court order directed the FSM to make a former spouse election under the SBP.  The same order also decreed the couple divorced.

	e.  On 30 September 2010, the applicant made application to the court to amend its previous order by showing that the FSM fraudulently submitted a spousal concurrence statement declining SBP coverage when he retired in 1986.

	f.  On 6 October 2010, the court vacated the 17 September 2010 order.

	g.  On 16 December 2010, the FSM passed away in New Jersey at 73 years of age.

	h.  On 19 December 2011, the court entered findings to the effect that the FSM fraudulently submitted a spousal concurrence and that the applicant had no knowledge of the fraud.  In spite of the applicant's representations that the SBP was available, neither the FSM nor his representatives disclosed coverage had been declined, and despite the applicant's and the court's attempts to obtain information the FSM failed to provide documents that would have disclosed his fraud.

	i.  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. Elections are made by category, not by name.

	j.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election.

	k.  Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provided less than maximum spouse coverage.

	l.  Title 10, U.S. Code, section 1448 provides, in pertinent part, that effective 11 March 1986, a married member is enrolled with spouse coverage 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, Volume 7B, chapter 43.  When the spouse's concurrence is required, the signature indicating concurrence must be corroborated by one or more witnesses.

DISCUSSION AND CONCLUSIONS:
1.  The applicant, the widow of the deceased FSM, requests, through counsel, reconsideration of her previous request for entitlement to spouse SBP benefits on the grounds the Spousal Concurrence Statement submitted by the FSM was not executed by the applicant.

2.  The Philadelphia County Court of Common Pleas determined that the FSM fraudulently submitted the Spousal Concurrence Statement declining SBP coverage.  Furthermore, because the 17 September 2010 order was vacated, the applicant and the FSM were not divorced at the time of his death.

3.  The applicant, as the FSM's spouse, did not concur in his election not to participate in the SBP, thereby triggering his automatic enrollment in the SBP, and as such, coverage and premiums begin effective the date of his retirement.  These premiums partially fund the program itself.  Any unpaid SBP premiums will have to be paid.

4.  In view of the foregoing, the applicant's request should be granted.  The applicant is advised that an amended death certificate reflecting the FSM's true marital status at the time of his death will be required when applying for her spousal annuity.

BOARD VOTE:

___X ___  ___X____  ___X  ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20110005896, dated 1 November 2011.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding the "Spousal Concurrence Statement," dated 28 June 1986;

	b.  requiring the applicant to pay all premiums due as a result of granting an SBP annuity; and

	c.  paying the SBP spouse annuity to the applicant as a result of this correction effective the day after the FSM's death.



      __________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)                                         AR20110007880



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120001432



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1