PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 October 2001                   
	DOCKET NUMBER:   AR2001059960

	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:

	Ms. Joann H. Langston		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Jose A. Martinez		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 she be determined to be the Survivor Benefit Plan (SBP) beneficiary of her deceased spouse, a former service member (FSM).

3.  The applicant states that she never received any letter requesting her to concur in the FSM’s declination.

4.  The FSM’s military records show that he enlisted in the Regular Army on        1 October 1974.  He retired on 1 November 1994.  At that time he declined SBP coverage, the Data for Payment of Retired Army Personnel, DA Form 4240, item 24 indicates that a letter was sent to the applicant informing her of the FSM’s election.  There is no evidence in the FSM’s personnel files or in the records at the Defense Finance and Accounting Service to indicate that she concurred in the FSM’s declination.

5.  The FSM died on 27 January 2001.

6.  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.  

7.  Public Law 99-145, enacted 8 November 1985 and effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provides for less than the maximum spouse coverage.  A member’s election defaults to full spouse coverage when the spouse’s concurrence is not obtained.

CONCLUSIONS:

1.  There appears to be Government error in this case.  There is no evidence of record to show that the applicant concurred in the FSM’s election to decline SBP coverage.  In the absence of her concurrence, his election should have automatically defaulted to full spouse coverage.  It would be appropriate to collect any SBP premiums due.

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 applicant did not concur in the FSM’s election to decline SBP coverage, thereby causing his election to default to full spouse coverage.

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

3.  That the applicant be paid the SBP annuity retroactive to the date of the FSM’s death.

BOARD VOTE:  

__jhl___  __mdm___  __jam___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Joann H. Langston
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001059960	
SUFFIX		
RECON		
DATE BOARDED	20011011	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.