IN THE CASE OF:
BOARD DATE: 28 May 2013
DOCKET NUMBER: AR20120019248
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 retired former service member (FSM), requests, in effect, entitlement to her husband's Survivor Benefit Plan (SBP) annuity.
2. The applicant states:
a. The signature on the DA Form 4240 (Data for Payment of Retired Army Personnel) is her name but she doesn't sign her name like that. She was unable to attend a retirement briefing and found the [DA Form 4240] among some of her husband's papers. She also didn't come across any information about him receiving disability and wants to know if he applied for disability as he had hurt his foot in Vietnam.
b. She has had to work two jobs for years and is now only able to work one job a few days a week. She had to take disability retirement that doesn't pay her much a month. She received injections in her back and attends physical therapy. Her back problem causes her pain in her feet, legs, and hip, and has had to miss work because of it. She has asthma, diabetes, allergies, high blood pressure, and other medical problems. She cannot get assistance from any family members and has been going through financial hardships.
3. The applicant provides a DA Form 4240 and a certificate of death.
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. Having had prior service, the FSM enlisted in the Regular Army on 12 December 1978. He was honorably retired from active duty on 31 January 1987 and was placed on the Retired List in the rank of sergeant first class effective 1 February 1987.
3. His record contains a DA Form 4240, dated 4 February 1986, where in Part III (SBP Election) of this form he checked the blocks to indicate he was married, had children, did not have any child incapable of self-support, and that he declined SBP coverage.
4. Part VI (Certification) of this form shows the FSM authenticated this form by placing his signature in the appropriate block on 4 February 1986. Part VII (SBP Certificates) shows the applicant authenticated this form by placing her signature in the appropriate block on 4 February 1986. A counselor also signed this form on 4 February 1986 at Fort Hood, TX, to show the FSM and his spouse (the applicant) were counseled that his "SBP Election was permanently irrevocable."
5. The FSM died on 30 August 1989. His certificate of death, dated 21 September 1989, shows that at the time of his death he was married to the applicant. The applicant placed her signature in block 20a (Signature of Informant).
6. In an email from the Defense Finance and Accounting Service (DFAS) received on 9 May 2013, a DFAS official stated there were no records on file pertaining to the FSM.
7. Public Law 92-425, the SBP, enacted 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 authorized by law (emphasis added).
8. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provided less than maximum spouse coverage.
DISCUSSION AND CONCLUSIONS:
1. The ABCMR is not an investigative agency and the ABCMR staff members are neither trained nor qualified to determine the validity of a signature affixed to a document. However, notwithstanding the contention of the applicant, the signature of the FSM's spouse on the FSM's DA Form 4240 and the signature of the informant on his certificate of death appear to be made by the same person. Regardless, the evidence of record confirms the FSM completed a DA Form 4240 on 4 February 1986 and declined SBP coverage.
2. Regrettably, in view of the foregoing there is insufficient evidence upon which to base granting the requested relief
3. With respect to whether the FSM had ever applied for disability, this issue is outside the purview of this Board. The applicant is advised to address this issue directly to the Department of Veterans Affairs.
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) AR20120019248
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ABCMR Record of Proceedings (cont) AR20120019248
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