IN THE CASE OF:
BOARD DATE: 16 April 2014
DOCKET NUMBER: AR20130012843
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 the FSM's DD Form 2656-2 (Survivor Benefit Plan (SBP) Termination Request) be voided.
2. The applicant states:
* upon her husband's death she applied for the SBP
* she was told that she was not entitled to the SBP because she signed a DD Form 2656-2
* she did not sign this form
* it was fraudulently signed by someone who forged her name
* she reported this to the police department
* she believes she is entitled to the SBP
* she didn't sign the termination request
* she feels her rights have been violated and she has been denied benefits that are rightfully hers
* her husband served for more than 20 years
* she and her children are entitled to these benefits that her husband earned
3. The applicant provides:
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Marriage license
* DD Form 2656-2
* FSM's death certificate
* Ohio Driver License and U.S. Uniformed Services identification card with her signature
* Deputy Report
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 applicant's 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 applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. Having prior active service, the FSM enlisted in the Regular Army on 5 March 1985. He married the applicant on 27 March 1987. He retired in the rank of sergeant on 30 November 2004.
3. His record contains a DD Form 2656 (Data for Payment of Retired Personnel), dated 13 December 2004, that shows he elected spouse and children coverage, full base amount.
4. The applicant provides a DD Form 2656-2, dated 19 January 2007, which shows the FSM elected to terminate the SBP. Section IV (Spouse Concurrence) of this form shows a signature of the applicant's same name concurring with the FSM's election.
5. The FSM died on 20 March 2008.
6. The applicant provides samples of her signature. She also provides a police report, dated 1 April 2008, which shows she filed a complaint of forgery and she reported her SBP was cancelled without her knowledge.
7. 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.
8. Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation. Retirees have a 1-year period beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP. The spouse's concurrence is required. No premiums will be refunded to those who opt to disenroll. The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention her signature was forged on the DD Form 2656-2 in January 2007 was carefully considered. However, she did not provide sufficient evidence to support this contention. The ABCMR does not investigate cases, but relies upon the evidence in the FSM's record and that provided by applicants. In this respect, the ABCMR does not perform, nor is it equipped to perform, forensic handwriting analyses.
2. Evidence shows that in 2007 the FSM elected to terminate coverage with spousal concurrence. Since the ABCMR is unable to substantiate the applicant's claim that her signature was forged on the DD Form 2656-2, there is an insufficient evidentiary basis for granting the applicant's requested relief.
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) AR20130012843
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ABCMR Record of Proceedings (cont) AR20130012843
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