MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            5 May 1999                  
	DOCKET NUMBER:   AR1999020476

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. John Saputo		Member	
	Mr. Roger W. Able		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, correction of the military records of her late husband, a former service member (FSM), to show that he elected survivor benefit plan (SBP) participation for his spouse.  She requests SBP benefits.  

APPLICANT STATES:  That she was not notified that her late husband had declined SBP participation, and she did not give consent to decline participation in that program.  She should receive the benefits because she was never notified.

EVIDENCE OF RECORD:  The military records of the FSM show:

He retired from the Army on 31 January 1980 in the rank of Master Sergeant with over 20 years of military service.  Prior to his retirement, on 16 January 1980, he completed a DA Form 4240 (Data for Payment of Retired Army Personnel) in which he declined coverage under the SBP.  That form indicates that the spouse of the FSM was not available for counseling [concerning the options available under the SBP for a survivor annuity, and the decision which had been made (by her husband)], and that she was informed by letter on 16 January 1980.

The FSM passed away on 17 January 1992.   

The applicant stated, in a 21 April 1997 letter, that at no time did she receive a letter from the Army concerning her husband’s SBP election, and she did not give verbal or written consent for declination in the SBP.  Also, her casualty officer did not take her to the VA or the retirement services office.   

On 9 July 1997 the Defense Finance and Accounting Service (DFAS) in Cleveland notified a member of congress that his letter and the applicant’s inquiry had been forwarded to the SBP review board, and that if that board honored her petition, she would be required to pay the SBP costs from                 1 February 1980 until the date of her husband’s death.  Further, at the time of the retirement of the FSM, it was not a requirement for the spouse to sign a declination of SBP benefits.  A concurrent declination became a requirement effective 1 March 1986.

Sometime later that year, the chief of the Army Retirement Services notified that same member of congress that there was no evidence of government error in the SBP election of the FSM.  He declined to enroll his spouse.  He went on to say that federal law directed the military service to notify the spouse of a service member who declined to participate in that program at the maximum level.  Since his spouse was not present for counseling, notification was made by mail on     16 January 1980.  There was no requirement for spousal concurrence in the election. 

Public Law 92-425, the SBP, enacted 21 September 1972, 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.  The election made by the soldier was irrevocable.

Prior to 1 March 1986, the SBP law required that a member’s spouse be “notified” if the member did not elect maximum SBP coverage for the spouse.  In Barber v. United States the Court of Claims held that if a spouse was not notified of the member’s failure to elect maximum spousal coverage, the spouse was entitled to an SBP annuity upon the member’s death.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  At the time that the FSM made his SBP election, there was no requirement for spousal concurrence.  Consequently, the applicant’s statement that she did not give consent, either verbally or in writing, to his SBP option, is immaterial.  The only requirement in effect at that time was for her to be notified of his election under the SBP.  Notwithstanding the applicant’s contention, there is evidence to show that she was notified of her husband’s option under this program. 

2.  There is simply no information nor available evidence to support the applicant’s request.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jma____  __js____  ___rwa__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020476	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990505	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 137.00		
2.		
3.		
4.		
5.		
6.