PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 January 2001                   
	DOCKET NUMBER:   AR2000045055

	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, in effect, 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 spouse coverage.

3.  The applicant states that she was never informed, notified, or briefed at any time concerning the fact the FSM had declined SBP coverage.  At the time they had three minor children at home and she would not have jeopardized their financial security by agreeing to a declination of any type of coverage.  She understands that retroactive payments would be collected for the amount of premiums due.

4.  The FSM’s military records show that he was inducted into the Army in September 1959.  He and the applicant married on 11 October 1961. On            13 February 1980, he completed Data for Payment of Retired Army Personnel, DA Form 4240.  Part IV shows that he declined to participate in the SBP.  Part IX of the DA Form 4240 shows that the applicant was not available for counseling but she was informed by letter dated 14 February 1980 of the FSM’s decision.  A copy of that letter is not available in the FSM’s personnel or finance files.  He retired on 1 July 1980.

5.  The FSM died on 21 January 1996.

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.  Retiring members and spouses were to be informed of the SBP options and effects.

7.   Public Law 99-145, enacted 8 November 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than the maximum spouse coverage.

8.  In the U. S. Court of Claims case of Barber versus the United States, decided on 7 April 1982, the Court ruled that an election out of the SBP was not binding unless the statutory requirement that notice of the withdrawal be given to the spouse was satisfied.  This was an Air Force case.  Air Force regulations at the time required that a copy of the notification of declination letter be filed with the service member’s election certificate.  The defendant failed to produce such a letter or other sufficient evidence to show the plaintiff had been notified of the service member’s declination.  Under those circumstances, the Court accepted as true the plaintiff’s allegation that the defendant did not comply with the notice requirement section of the statute and granted the plaintiff’s motion for summary judgment.

CONCLUSIONS:

1.  The Board concludes that an injustice has occurred in this case.

2.  At the time the FSM made his decision to decline participation in the SBP, spousal concurrence was not required.  Spousal notification only was required.

3.  The DA Form 4240 indicates that the applicant was notified by letter on        14 February 1980 of the FSM’s declination of the SBP.  However, a copy of the letter is not available.  The lack of evidence indicating that she was in fact served with the notification letter and the inability to determine whether she was properly counseled as required by the statute support her contentions that she was not notified or counseled regarding the FSM’s declination to enroll in the SBP.  These circumstances establish the probability of legal error, and as such, relief should be granted.

4.  In view of the foregoing, the FSM’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, full base amount, with spouse coverage on 13 February 1980.

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

3.  That the applicant be paid an annuity based upon the FSM’s election to participate in the SBP retroactive to 21 January 1996, the date of his death.

BOARD VOTE:  

__aao___  __teo___  __bfh___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000045055	
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.