PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 January 2001                   
	DOCKET NUMBER:   AR2000045054

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas E. O’Shaughnessy, Jr.		Member	
	Ms. Brenda F. Hirschi		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 that the records of her deceased spouse, a former service member (FSM), be corrected to show he elected to participate in the Survivor Benefit Plan (SBP) for the full amount of his retired pay.

3.  The applicant states that even though she signed the application no one explained to her what it was all about.  The FSM told her to sign her name.  He always told her she would be taken care of if something should happen.  She is from Panama and at that time did not fully understand English.  She provides a statement from a friend as supporting evidence.

4.  The FSM's military records show that he entered the Army on 30 December 1958.  He retired on 1 January 1989.  At that time he enrolled in the SBP for spouse and children coverage based upon a reduced amount ($450.00) of his retired pay.  The applicant signed the Data for Payment of Retired Army Personnel, DA Form 4240, acknowledging she had been fully informed and counseled concerning the options available under the SBP and that she understood and concurred with the decision made by the FSM.  Although the Retirement Services Officer (RSO) signed in Part VI, where he witnessed the FSM’s signature, he did not sign in Part VII where the applicant signed.

5.  The FSM died on 1 June 1997.

6.  Public Law 92-245, 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.  

7.  Public Law 99-145, enacted 8 November 1985, required the spouse’s written concurrence for a retiring member’s election that provides less than maximum spouse coverage.  In the event the spouse’s concurrence was not obtained, the member’s election would default to the maximum spouse coverage.

8.  Army Regulation 600-8-7 prescribes the policies for the retirement services and SBP functions of the Military Personnel Management System.  It requires that every soldier and spouse must be counseled on the SBP options available.

CONCLUSIONS:

1.  The statute requires the spouse’s written concurrence for a retiring member’s election that provides less than maximum spouse coverage and implies that this must be informed consent.  There is a regulatory requirement that both the soldier and the spouse must be counseled on the SBP options available.  The DA Form 4240 provided that the RSO would sign in both the section where the FSM signed the form and the section where the applicant concurred in the election.  The fact that the RSO failed to sign in the section requiring the applicant’s concurrence tends to establish that she was not counseled; therefore, her consent was uninformed and, as such, legally deficient.

2.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the FSM concerned elected to participate in the SBP for full base amount, spouse and dependent children coverage, effective upon his retirement.

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any SBP costs due for the difference.

3.  That the applicant be paid an annuity based upon the FSM’s corrected election retroactive to the date of his death.

BOARD VOTE:  

__aao___  __toe___  __bfh___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000045054	
SUFFIX		
RECON		
DATE BOARDED	20010130	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.