IN THE CASE OF:	  

		BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120003257 


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 that the records of her deceased husband, a retired former service member (FSM), be changed to show he elected spouse coverage under the Survivor Benefit Plan (SBP).

2.  The applicant states she does not believe her husband was properly counseled and therefore he did not understand the selection he made would result in the outcome of her not having survivor benefits.  He could not have been aware because he had explained to her that she would receive approximately 50 percent of his retired pay if he died.  If the FSM and she had been properly informed, she would never have signed the document resulting in not having survivor benefits.  She asks that the Board consider the kind of person her husband was.  Her guess is that he was never adequately counseled on the SBP or even advised that there were choices.  She understands that premiums since his retirement would have to be paid if relief is granted.

3.  The applicant provides:

* self-authored letter
* FSM's DD Form 2656 (Data for Payment of Retired Personnel) (Back)
* Orders 050-030 published by the State of Michigan Department of Military and Veterans' Affairs
* FSM's Notification of Eligibility for Retired Pay at Age 60
* FSM's certificate of death
* two letters of support
* miscellaneous pictures with notations
* letter of commendation
* miscellaneous funeral-related documents

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 25 March 1941.  His military records show he enlisted in the Army National Guard on 3 June 1983 with prior active and inactive service.

2.  The FSM was issued a Notification of Eligibility for Retired Pay at Age 60, dated 23 October 1992.  The cover letter for the notification sent to the FSM states a DD Form 1883 (Survivor Benefit Plan Election Certificate) with instructions had been transmitted to the FSM at his home of record via certified mail and to command channels for action.  A copy of the letter contains an annotation indicating the letter had been held for over 90 days and the FSM had failed to complete the DD Form 1883 and return it to the sending office.  This annotation is dated 12 March 1993.

3.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the FSM was discharged from the Army National Guard and transferred to the Retired Reserve effective 31 January 1999.

4.  The applicant provides a copy of a DD Form 2656 which shows this form was signed and dated by her, the FSM, and a witness on 24 March 2001 during the FSM's retirement processing.  Item 26g contains an "X" indicating "I elect not [the word "not" is redacted] to participate in SBP" and an "X" indicating the FSM had eligible dependents under the plan.

5.  He attained 60 years of age on 25 May 2001.

6.  The applicant provided a death certificate showing the FSM died on 13 May 2011.  This document shows she was married to the FSM at the time of his death.

7.  She provided pictures, cards, and Internet printouts related to the FSM's death and funeral, which attest to the caring kind of person he was.

8.  She provides letters from two retired service members indicating they did not believe the FSM would have elected not to participate in the SBP had he been properly counseled on the SBP.

9.  The Defense Finance and Accounting Service records contain a DD Form 2656 completed (signed and dated by the FSM and a witness) on 24 March 2001.  This document shows that during the FSM's retirement processing (prior to attaining age 60) he elected not to participate in the SBP.  Block 30 (Spouse) of this form states, "I hereby concur with the SBP election made by my spouse.  I have received information that explains the options available and the effects of these options.  I know that retired pay stops on the day the retiree dies.  I have signed this statement of my free will."  Block 30a contains her signature and is dated 24 March 2001.

10.  Public Law 92-425, the SBP, enacted on 21 September 1972, 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.  Changes in SBP options are not authorized except in specific instances or as authorized by law.

11.  Public Law 95-397, the Reserve Component SBP, enacted 30 September 1978, provided a way for those who had qualified for Reserve retirement but were not yet age 60, to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member's 60th birthday; and (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.

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

DISCUSSION AND CONCLUSIONS:

1.  The evidence indicates the FSM did not return a completed DD Form 1883 when he was issued his 20-year letter; therefore, in effect, he declined enrollment in the Reserve Component SBP at that time with the option to choose whether to participate in SBP upon application for retired pay at age 60.

2.  The applicant and the letters from two retired service members state that if the FSM and the applicant had been adequately counseled regarding the SBP options, the FSM and the applicant would have elected to participate in the SBP.

3.  However, on 24 March 2001 during the FSM's retirement processing, the FSM elected not to participate in the SBP.  The applicant's signature on the DD Form 2656 indicated she was in agreement with the FSM's election to decline to participate in SBP, that she had received information explaining the options available and the effects of those options, and that she freely concurred with the declination.

4.  The fact that the FSM is now deceased and the applicant would like to receive SBP benefits is understandable.  However, there is no evidence to show the FSM was improperly counseled or that the decision to decline SBP was anything other than a well-considered choice they made.

5.  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 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)                                         AR20120003257



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ABCMR Record of Proceedings (cont)                                         AR20120003257



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