IN THE CASE OF:
BOARD DATE: 2 June 2015
DOCKET NUMBER: AR20140016797
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 correction of the FSM's records to show he enrolled in the Survivor Benefit Plan (SBP) and elected "Spouse and dependent children" so that she is entitled to an annuity.
2. She states she and the FSM intended to elect SBP for spouse and children and they made every effort to properly fill out all the documents provided to them with that intent. Unfortunately, the documents are in error and conflict with her and the FSM's intent. She states the FSM's SBP counseling took place four days after she signed the form which is contrary to SBP procedures. She explains on 2 July 1992 she received a letter explaining SBP and she signed a Statement of Receipt of SBP Election and Fact Sheet. She states she elected SBP coverage for spouse and children at the full base amount. However, the FSM erroneously signed the DA Form 4240 (Data for Payment of Retired Army Personnel) electing dependent children only. She states according to the SBP enrollment procedures, "If a spouses signature is required, it must be on or after the date of the service member's signature, but also before services member's retirement date."
3. She provides:
* Self-authored statement
* DA Form 4240
* Letter, dated 2 July 1992,
* Statement of Receipt of SBP Election and Fact Sheet
* Statement of Spousal Concurrence, dated 3 July 1992
* Chronology of Events
* Certificate of Death
* Certificate of Marriage
* Email
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
CONSIDERATION OF EVIDENCE:
1. After having prior enlisted service, on 8 October 1970, the FSM was appointed as a second lieutenant in the U.S. Army Reserve.
2. On 26 November 1983, the FSM and the applicant were married.
3. On 7 July 1992, the FSM completed a DA Form 4240 and he elected dependent children only coverage. He listed his two sons and one daughter as his dependents. Section VII - SBP Certificates (Required when married members do not elect full coverage or decline coverage for spouse) shows the applicant was not available for counseling and she was informed by a letter. The remarks section shows the letter was mailed to her on 2 July 1992.
4. In a letter, dated 2 July 1992, the Installation Retirement Services Officer (RSO) informed the applicant about SBP. The letter explained that the decision the FSM makes regarding his SBP election is irrevocable. However, by law he may not elect certain options unless the applicant agrees to that choice in writing. The letter further stated that prior to the FSM's date of retirement; he may elect one of the following SBP options:
* Maximum spouse coverage
* Maximum spouse and child coverage
* Coverage to provide less than the maximum SBP annuity
* Dependent child coverage only
* Former spouse or former spouse and children coverage
* No coverage
5. On 3 July 1992, the applicant signed the letter acknowledging receipt. She also signed the "Statement of Spousal Concurrence" with item 3 checked indicating "Survivor Coverage for Children, With Base Amount of Full." This form was notarized on 3 July 1992.
6. On 31 August 1992, he was honorably retired.
7. The FSM died on 18 September 2011. The death certificate lists his marital status as married and lists the applicant as his spouse.
8. 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.
9. 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. There are no documents in the available records and none were provided by the applicant to show the FSM elected full spouse and dependent children coverage. All available information indicates the FSM elected dependent children only coverage and the applicant agreed with his election. There is no evidence he ever paid any premiums other than for his children.
2. Further, as noted on the DA Form 4240, SBP Certificates are only required when married members do not elect full coverage or decline coverage for spouse. Had the FSM elected full spouse and children coverage, there would have been no need for the applicant to execute a concurrence at all.
3. In the absence of evidence showing the FSM elected SBP coverage for spouse and dependent children, there is no basis to now designate the applicant as the beneficiary.
4. Regrettably, in view of the foregoing there is no basis for granting her 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 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) AR20140016797
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140016797
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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