BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20130013051 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for correction of the record of her husband, a deceased former service member (FSM), to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage.

2.  Counsel states that in denying the applicant's application the Board relied on a document or documents that:

* was not submitted by the applicant in her application
* was not provided to her by the Department of the Army (DA) prior to her application
* was used by the Board without any opportunity for applicant to review the authenticity of the said document(s)
* was unable to contest or rebut any assertions of fact contained in said document(s)

3.  Counsel cited paragraphs 2a and 2b under "The applicant states" section of the previous Record of Proceedings, dated 10 May 2012.  At page 2, CONSIDERATION OF EVIDENCE, counsel cited paragraph 2 regarding the FSM's DA Form 4240 (Data for Payment of Retired Army Personnel) and cited portions of an email forwarded to the applicant from a Retirement Services Officer (RSO) at Fort Sam Houston, TX.  Counsel contends that DA provided the applicant only the first page of the DA Form 4240.  At no time was a second page provided to counsel or the applicant.  Counsel contends the Board relied on the undisclosed second page of the FSM's DA Form 4240 in denying the applicant's application.  

4.  Counsel provides an affidavit, an email, and the previous Record of Proceedings.

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 AR20110019924 on 10 May 2012.

2.  Counsel has provided new arguments and evidence that will be considered by the Board.

3.  The FSM enlisted in the Regular Army on 31 May 1951.  He married the applicant on 9 May 1952.  He remained on active duty through continuous reenlistments.

4.  The FSM's DA Form 4240, dated 1 May 1980, shows he was married with dependent children and he declined SBP coverage.  In Part VIII (Certification), he and a witness signed the form on 1 May 1980.

5.  Part IX (SBP Certificate (Required when married member does not elect full coverage for spouse)) of this form shows the FSM's spouse was not available for counseling and she was informed by letter on 1 May 1980.  On 1 May 1980, the applicant was notified by letter of the options available under the SBP and that the FSM elected not to participate in the SBP.  She was instructed to sign and return the letter.  On 3 May 1980, the applicant signed and returned the letter acknowledging the FSM's election not to participate in the SBP. 

6.  The FSM retired on 30 June 1980 in the rank of command sergeant major.  

7.  The FSM died on 29 September 2008.

8.  Counsel provides an affidavit, dated 8 May 2013, wherein he reiterated his contentions cited in the request for reconsideration.

9.  Counsel also provided an email, dated 22 October 2010, wherein he requested reinstatement of the applicant's claim for survivor benefits.  Counsel informed the representative that the applicant went to Fort Sam Houston after the death of the FSM and presented her documents (death certificate and marriage license) to receive the FSM's retired pay.  Someone at Fort Sam Houston or the Defense Finance and Accounting Service office in Kentucky provided the applicant a DA Form 4240 signed by the FSM indicating he declined SBP coverage.  This was the first time she had seen this document or had any knowledge that the FSM had allegedly declined SBP coverage.  Counsel cited Public Law 92-425 establishing SBP and stated current law since 1985 Title 10, U.S. Code, section 1448(a)(3)(A), written concurrence of a spouse is required if the servicmember elects anything less than full coverage."  Further, counsel stated the DA Form 4240 required the servicemember's certification, but it didn't appear on the copy of the form.  The form recently provided to her is missing the remainder of the form where the FSM's signature was witnessed by the RSO and missing the certification date.  

10.  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 dependents.  At the time, spousal notification, but not concurrence, was required.  

11.  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 provided less than maximum spouse coverage.  

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends this Board denied the applicant's application based on a document (i.e., the DA Form 4240) that the applicant had not seen.  However, the evidence of record does not indicate that an error or injustice exists in this case.  

2.  Evidence shows that on 1 May 1980 the applicant was notified by letter of the options available under the SBP and that the FSM elected not to participate in the SBP.  On 3 May 1980, she signed and returned the notification letter acknowledging her husband's election not to participate in the SBP.

3.  At the time, there was no requirement that a spouse concur with such an election, thus all requirements of the law were met.  

4.  The evidence of record shows the FSM retired on 30 June 1980.  He was married to the applicant at that time, but he declined to participate in the SBP. 
5.  Regrettably, 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110019924, dated 10 May 2012.




      _______ _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)                                         AR20130013051





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ABCMR Record of Proceedings (cont)                                         AR20130013051



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