IN THE CASE OF:	  

		BOARD DATE:	  7 January 2015

		DOCKET NUMBER:  AR20140019117 


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, in effect, payment of the Survivor Benefit Plan (SBP) annuity based on the death of her husband, a former service member (FSM).

2.  The applicant states:

* she was denied payment of the SBP annuity because she signed the DD Form 2656 (Data for Payment of Retired Personnel) declining the benefit
* he never declined SBP participation and the signature on the Spouse SBP Election Statement is not hers
* she spoke with official at the Defense Finance and Accounting Service (DFAS) and they gave her the runaround and passed the issue to someone else
* there is clearly a discrepancy in the signature block as evidenced by the initials placed on the form which are not hers

3.  The applicant provides letters to and from DFAS. 

CONSIDERATION OF EVIDENCE:

1.  The FSM's record shows he was born in November 1966.  He and Lena, the applicant, were married on 21 August 1987. 

2.  The FSM enlisted in the Regular Army on 17 August 1984.  He served through multiple reenlistments or extensions in a variety of assignments and he held the rank/grade of staff sergeant (SSG)/E-6. 
3.  On 4 May 2006, in anticipation of his upcoming retirement, the FSM completed a DD Form 2656.  He indicated he was married to Lena, the applicant, and they had a dependent son, born in 1993.  He elected not to participate in the SBP.  He and a witness, the Fort Hood Retirement Services Officer, authenticated this form with their signatures.  

4.  On 29 May 2006, the applicant signed a separate SBP Election statement.  She indicated she had received information that explained the options available and the effects of those options.  She also indicated she concurred with her spouse's SBP election of no survivor coverage for spouse or children.  She and a witness authenticated this form with their signatures.  

5.  The FSM retired on 31 May 2006 and he was placed on the Retired List in his retired rank/grade of SSG/E-6.  He completed over 21 years and 7 months of active service.  

6.  On 29 November 2012, the FSM died.  His death certificate shows he was married to Lena, the applicant, at the time of death.

7.  It appears shortly after his death, the applicant communicated with DFAS in relation to the SBP annuity.  It also appears she claimed she did not sign the statement concurring with her deceased husband's election not to participate in the SBP. 

8.  On 12 and 29 May 2014, DFAS officials advised her that DFAS cannot validate signatures and that a change to his retirement records is not within their purview.  She must contact his branch of service for a correction of his records.

9.  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. An election, once made, was irrevocable except in certain circumstances.  This law also provides that every member having a spouse and/or child(ren), who retired/transfers to the retired list on or after that date, is automatically covered under SBP at the maximum rate unless he/she elected otherwise before retirement or transfer to the retired list.

10.  Title 10 U.S. Code (USC), section 1448, in effect at the time, required notice to a spouse if a member elected to participate in the SBP.  The statute also provided for automatic enrollment for spouse coverage at the full base amount unless a member affirmatively declined to participate in the SBP prior to receiving retired pay.  10 USC, section 1448 was amended effective 1 March 1986 to require written concurrence by the spouse in a member's decision to decline the SBP or elect spouse coverage at less than the full base amount.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that prior to his retirement the FSM was provided an opportunity to make an SBP election and he willingly and in writing elected not to participate in the SBP on 4 May 2006.  His spouse, having been fully informed and counseled concerning the options available under the SBP for a survivor annuity, signed a separate form on 29 May 2006, indicating her concurrence with his election not to participate in the SBP.  

2.  At the time of this election, the law required a spouse concurrence when a married member does not elect full coverage or elects to decline coverage.  The spouse concurrence must occur on or after the member's election but prior to the member's effective date of retirement. 

3.  The initials appearing on the separate page concurrence are those of the applicant's husband and she contends he never intended to decline SBP coverage.  Although the Retirement Services Officer mistakenly signed the DD Form 2656 in the spousal concurrence block, the DD Form 2656 is not the controlling document with respect to her concurrence.  The separate page concurrence controls. 

4.  Since the FSM elected not to participate in the SBP and since his spouse, the applicant, concurred with his election, there was no annuity at the time of death.  The Board neither validates signatures nor is it an investigative body.  The applicant has the burden of proof to show that her signature was forged and she has not met that burden.

5.  In view of the foregoing, the applicant is not entitled to the 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)                                         AR20140019117



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140019117



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1