IN THE CASE OF:
BOARD DATE: 20 October 2015
DOCKET NUMBER: AR20150003277
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 that the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP).
2. The applicant states:
a. She did not understand what she was signing and the consequences of
her actions that have prevented her from receiving her husbands benefits.
b. Her lack of understanding of the SBP form was signed in error with
witnesses present.
c. She did not work during her husbands active service years because of
their children. She only worked part-time after his retirement.
d. His death has left her family in a financial struggle to meet household
expenses.
3. The applicant provides:
* DD Form 2656 (SBP Election Certificate)
* SBP Spouse Concurrence Statement
* FSM death certificate
* United States Uniformed Services Identification and Privilege Card
CONSIDERATION OF EVIDENCE:
1. On 20 March 1979, the FSM enlisted in the Regular Army.
2. The FSM married the applicant on 16 June 1990.
3. On 17 June 1999, the FSM completed a DD Form 2656. He indicated that he declined SBP enrollment with spousal concurrence provided by the applicant on
27 June 1999. The DD Form 2656 was witnessed on 27 June 1999.
4. On 31 August 1999, the FSM retired.
5. The FSM died on 19 May 2014. He never paid any SBP premiums nor did he enroll during any open enrollment seasons.
6. The applicant states that she was unaware of what she was signing when she concurred with the FSMs declination of SBP and is now undergoing financial hardship.
7. The SBP Spouse Concurrence Statement that the applicant signed stated, I have received information that explains the options available and the effects of those options. I have signed this statement of my own free will.
8. Department of Defense Instruction (DODI) 1332.42, in effect at the time, provided the responsibilities and procedures for administering the Survivor Annuity Program:
a. Paragraph E3.2.1 stated a member entitled to retired pay based on active
service who had a spouse or dependent child was considered a participant having maximum SBP coverage unless the member, with spousal concurrence if married, elected less-than-maximum spouse coverage, child-only coverage, or not to participate in the program. Unless such election was made prior to the first day of entitlement to retired pay, automatic coverage for maximum spouse or spouse and child coverage was to be entered. An election under this paragraph was irrevocable unless otherwise provided by law if not revoked before the date on which the person first became entitled to retired pay.
b. Paragraph E3.5.1 stated written spousal concurrence was required when
the member elected to decline coverage or provide the spouse with less
than the maximum SBP coverage available, to include electing child-only coverage.
9. Public Law 99-145, enacted on 8 November 1985, but effective 1 March 1986, required a spouses written concurrence for a retiring members election that provides less than the maximum spouse coverage.
10. Congress has, on occasion, authorized open enrollment seasons for SBP, the last of which occurred in 2005-2006.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends she did not know what she was signing when she concurred to the declination to the SBP.
2. The FSM and the applicant were married at the time of his retirement on
31 August 1999.
3. The FSM completed his DD Form 2656 on 17 June 1999 prior to his retirement. He indicated on the form that he declined to participate in the SBP for spouse coverage. The applicant concurred with his election on
22 June 1999 before his retirement. There is no evidence that the applicant did not receive an SBP briefing.
4. The FSM had the opportunity to enroll his spouse in the SBP during an open enrollment season from 2005 to 2006, but failed to do so.
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 an 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) AR20120008111
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20150003277
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