PROCEEDINGS

	IN THE CASE OF:

	BOARD DATE:           19 October 2000                  
	DOCKET NUMBER:   AR2000039121

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

	Mr. Carl W. S. Chun 		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest W. Lutz, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Tracey L. Pinson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2. The applicant requests reconsideration of her earlier appeal to correct the deceased former service member’s (FSM’s) records by granting her Survivor Benefit Program (SBP) coverage as his spouse. 

3.  The applicant states, in effect, that she was never counseled.  Had she been counseled, she would never have agreed to waive the SBP.   There are discrepancies between the two copies of the DA Form 4240 (Retired Pay Data).  She has a copy that does not bear the signature of the counselor.  She believes that if she signed the document (and she points out that the signatures are not identical) then the FSM probably brought the form home and told her it was a routine thing she had to sign as part of his retirement processing.  He would have then taken the form back to the base and convinced the counselor that she understood what she had signed.  She also notes that the FSM signed the form on 7 September 1979 while the counselor signed it on 12 September 1979.  To substantiate her case, she submits the copy that was not signed by the counselor.

4.  The copy of the DA Form 4240 that is unsigned by the counselor is new evidence that requires Board consideration.
  
5.  The memoranda prepared to reflect the Board’s 10 February 2000 and 
21 August 2000 reviews of the case are incorporated herein by reference as if wholly set forth.

6.  Following the Board’s 21 August 2000 decision to grant a formal hearing the analyst reevaluated the case and concluded that he had misinterpreted the evidence and that the  available evidence did, in fact, indicate that relief was appropriate.  

7.  Concurrently, the applicant inquired of the Deputy Assistant Secretary of the Army (DASA), Army Review Boards if there was not some way that the requested relief could be accomplished without the necessity of incurring the expense of a formal hearing.  Consequently, the DASA authorized referral of the case to another informal panel. 

8.  Telephonic communications between the analyst and two of the FSM’s three now adult children indicate they were all still living at home when the FSM retired.   Their ages were approximately then about age 20, 19 and 17.  They believe that if their mother had accompanied their father to the base as part of his out-processing that they would remember it because it would have been quite unusual.  They also report that, at that time, the FSM was drinking heavily and they do not question that he would have manipulated the situation to keep from having to pay the SBP premium. 

9.  The cost of the survivor annuity for a spouse and the amount of the annuity are computed from the base amount selected.  The base amount may be any amount from a minimum of $300.00 up to the full retired pay.  The cost of the annuity is two and one-half percent of the base amount of $300.00 plus 10 percent of the balance of the base amount over $300.00.  The annuity payable is 55 percent of the base amount selected and is reduced to 35 percent at age 62. 

10.  Staff experience in similar cases indicates that unpaid premiums are recouped by the Defenses Finance and Accounting Service (DFAS).  Apparently, about 75 percent of the monthly benefit is normally withheld until the entire unpaid premium is paid.

CONCLUSIONS:

1.  The proffered scenario, that the FSM probably brought the DA Form 4240 home, told her it was a routine document for her to sign and then convinced the counselor that she had executed an informed waiver is the most reasonable explanation for the existence of a copy of the DA Form 4240 that does not bear the counselor’s signature.  

2.  The fact that the SBP counselor signed the counseling statement 5 days after the FSM made his coverage elections tends to support the above conclusion.  There is no available explanation for the applicant to have gone through the process and then brought his wife in 5 days later.

3.  The FSM’s adult children confirm that he could and would have acted in the above described manner.

4.  The Board concludes that the applicant was not properly counseled and did not execute an informed endorsement of the FSM’s decision.  She should be granted SBP coverage as his spouse. 

5.  The Board notes that SBP is paid for by the participants.  The applicant will have to pay the uncollected premiums before she can receive the full benefit. 

6.  The Commander, DFAS, Cleveland is requested to audit the FSM account from 1 October 1979 until his death on 23 May 1999 to determine the total amount of SBP premium deductions to be recouped depending on the base amounts selected.  The applicant should be advised as to the outcome so that she may make an informed decision concerning the base amount.  

7.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error and rectify an injustice.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a.  by showing that the individual concerned elected to provide SBP coverage for his spouse only, effective 1 October 1979, at the full base amount;  

	b.  by advising the applicant of the outcome of the audit as outlined in item 6 of the conclusions, authorizing her to make an adjustment to the base amount as is financially required; and

	c.  by paying the annuity and recouping the SBP premium following the applicant’s final selection of the base amount.

BOARD VOTE:

__EWL__  ___CJP__  __TLP__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Ernest W. Lutz, Jr._____
		        CHAIRPERSON

INDEX

CASE ID	AR1999039121	
SUFFIX		
RECON		
DATE BOARDED	20001019	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.