IN THE CASE OF:	  

		BOARD DATE:  29 January 2013

		DOCKET NUMBER:  AR20120009172 


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 request to correct the records of her late husband, a former service member (FSM), to show he elected spouse coverage under the Survivor Benefit Plan (SBP) and that she be granted a personal appearance before the Board.

2.  The applicant defers her comments to counsel.

3.  The applicant provides a copy of her birth certificate (untranslated) and a copy of an assessment from the Sylvan Learning Center. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board reconsider the applicant's previous request to be covered under the SBP and that she be granted a personal appearance before the Board.

2.  Counsel states, in effect, that the Army did not meet the intent of the law when it mailed a letter to the applicant notifying her that her husband, an active duty Soldier serving in the pay grade of E-7, had declined SBP coverage.  The applicant is of Korean descent and she could not read, write, or speak English at the time of her husband’s retirement and she still does not read or write English and speaks very little English to this day.  Counsel goes on to state that in 2012 the applicant's English literacy was tested, 25 years after the FSM's retirement.  The test shows she has a vocabulary equivalent of pre-kindergarten.  Therefore, a letter sent to her which she claims she never received would not have effected notification as intended by the law in effect at the time.  Counsel continues by stating the Retirement Services Officer (RSO) should have reviewed the FSM's records and seen that the applicant was of Korean descent and taken steps to ensure that she was aware of the consequences of the FSM's declination of the SBP.  However, no action was taken to ensure that she was made aware of the actions taken by the FSM at the time.  Accordingly, the applicant should be granted enrollment in the SBP retroactive to the date of the FSM's retirement. 

3.  Counsel provides a four-page brief of the applicant’s application and copies of two case summaries acted on by the United States Court of Claims.  

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100028587, on 14 June 2011.

2.  On 20 May 1982, the FSM was serving in the pay grade of E-7 when he applied for voluntary retirement to be effective 1 September 1982. 

3.  On 12 August 1982, he completed a DA Form 4240 indicating that he declined SBP coverage.  The official completing the form indicated that the spouse was not available for counseling and that a letter informing her of her husband’s election was mailed on 12 August 1982.

4.  A review of the FSM’s records show the FSM’s spouse (the applicant) was born in Korea and was a naturalized citizen.

5.  On 31 August 1982, the FSM was retired and he was transferred to the Retired List effective 1 September 1982.  He had served 26 years, 5 months, and 21 days of active service.

6.  The FSM passed away in Severn, Maryland on 4 April 2001 at the age of 62, over 18 years after his retirement.

7.  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 family members.  Retiring members and spouses were to be informed of the SBP options and effects.

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 the maximum spouse coverage.

9.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  It provides, in pertinent part, that applicant do not have a right to a hearing before the ABCMR.  The director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be designated as the annuitant of the FSM’s SBP has been carefully reconsidered; however, the applicant has failed to provide sufficiently convincing evidence to show that the Army failed to follow the laws and regulations in effect at the time.

2.  The applicant’s contentions and supporting documents have also been carefully reviewed.  Given the laws and regulation in effect at the time, it appears that the proper notification procedures were followed.

3.  It is also noted that the FSM’s records show the applicant was a naturalized citizen of Korean descent; however, it was not incumbent on an RSO or any other Army official to determine a spouse’s literacy level or to ensure that notification letters were personally delivered to a spouse’s hands.

4.  While it is indeed unfortunate that the FSM did not enroll in the SBP at the time of his retirement 30 years ago, the evidence of record shows that he declined enrollment and a letter of notification was dispatched to his spouse on the same date.

5.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

6.  Therefore, in the absence of sufficient evidence to show that the evidence of record is in error or evidence to show the FSM elected to participate in the SBP, there is no basis to now designate the applicant as the annuitant of said benefits.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100028587, dated 14 June 2011.




      _______ _  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)                                         AR20120009172



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ABCMR Record of Proceedings (cont)                                         AR20120009172



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