MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 October 2001                   
	DOCKET NUMBER:   AR2001059619

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Donald P. Hupman, Jr.		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, that the records of her deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP) for spouse coverage.

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  That despite the continued separation of the FSM and the applicant between his retirement in 1977 and his death in 1997, they continued to be married and kept in regular contact with each other until his death.  Because of these contacts, the applicant learned of the FSM’s death and arranged and paid for his funeral.  When she applied for the FSM’s retirement death benefits, she was advised that in 1977 she had signed a waiver of the SBP.  She denies signing any waiver of the SBP and that any signature on the alleged waiver she had supposedly signed was a forgery.  

EVIDENCE OF RECORD:  The FSM's military records show:

He initially served in the Army during World War II.  He reentered the Army on    5 December 1950.  He and the applicant married on 18 June 1971.  He retired on 1 February 1977.  At that time, he completed a Data for Payment of Retired Army Personnel, DA Form 4240, and declined to enroll in the SBP.  Part VIII indicates that the applicant was not available for counseling and was informed of the FSM’s decision by letter dated 26 January 1977.  The FSM died on 17 October 1997.

The Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) has stated that the FSM’s records have not yet been archived, are most likely warehoused waiting to be archived, and are not accessible at this time.

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.  At the time, only spousal notification was required when a member elected less than the maximum spouse or spouse and children coverage.  

Public Law 99-145, enacted 8 November 1985 and effective 1 March 1986, required a spouse’s written concurrence when a member elects less than the maximum spouse or spouse and children coverage.  

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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  A spouse’s “waiver,” i. e., concurrence in the member’s declination to participate in the SBP, was not required at the time the FSM retired.  It appears the DFAS employee who informed her she had signed a “waiver” may have been referring to the notification letter sent to her dated 26 January 1977 informing her of the FSM’s decision not to enroll in the SBP, the only spousal notice required at the time.  The letter would have been sufficient; her acknowledgment of the letter was not required.  

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

__rvo___  __rks___  __dph___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001059619	
SUFFIX		
RECON		
DATE BOARDED	20011016	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.