IN THE CASE OF:
BOARD DATE: 26 July 2012
DOCKET NUMBER: AR20120001606
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 the FSM's record to show he elected spouse coverage under the Survivor Benefit Plan (SBP).
2. She states the FSM did not consult with her or inform her regarding any decisions related to military matters. She did not receive a notice from the Army of his decision to decline SBP coverage.
3. She provides:
* a notarized self-authored statement
* the FSM's Certificate of Death
* a Marriage License
* the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of
justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant provides a Marriage License showing she married the FSM on 12 July 1965.
3. The FSM retired from the Regular Army on 30 November 1988 after completing 23 years, 7 months, and 8 days of creditable active service.
4. During his retirement processing, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel).
a. Part III (SBP Election) of the form required him to make an SBP election. He indicated he was married with dependent children and he declined SBP coverage.
b. Part VII (SBP Certificates) shows the applicant signed the form on 23 June 1988. By signing the form, she acknowledged she had been fully informed and counseled concerning the options available under the SBP and understood the decision that had been made in Part III.
5. The FSM's record includes a Forces Command (FORSCOM) Form 1004-2-R (Statement of Spousal Concurrence) signed by the applicant on 23 June 1988. By signing the form, she indicated she concurred with the FSM's election of no coverage under the SBP. The form bears two witness signatures.
6. She provides a Certificate of Death showing the FSM died on 6 August 2007. The Certificate of Death names her as his wife.
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.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record contradicts the applicant's statement that she did not receive a notice from the Army of the FSM's decision to decline SBP coverage. She signed a DA Form 4240 and a FORSCOM Form 1004-2-R 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.
2. The evidence of record shows all requirements of law were met with regard to obtaining the applicant's concurrence with the FSM's election to decline enrollment in the SBP.
3. In view of the foregoing, there is no basis for correcting the FSM's record to show he elected SBP coverage or for paying the applicant 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 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) AR20120001606
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ABCMR Record of Proceedings (cont) AR20120001606
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