PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 April 2002                   
	DOCKET NUMBER:   AR2002068044

	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 Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Charles Gainor		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 enrolled in the Survivor Benefit Plan (SBP).

3.  The applicant states that before the FSM, her husband of 22 years, passed away, he assured her that all was in order and she could live on the military pay of a retired sergeant.  She and her five children were shocked to discover that she would receive no benefits.  Since she is only 60 years old, she cannot draw his social security yet and she is very dependent upon his retired pay.  At the time they signed the Data for Payment of Retired Army Personnel, DA Form 4240, they were not counseled about anything they were signing nor told deductions were to be taken out (if SBP were elected).  In Part IV, they were told to check item “e” as that meant they wanted no insurance coverage like the $10,000 policy they were told he had before he retired.  At the time, they were not worried about the policy as they thought the children and she would receive his retired pay to live on.  She was also told to sign the reverse of the DA Form 4240.  She was not familiar with the military as they had just married in 1979 so she did as she was told.  The FSM was slightly illiterate and was unable to understand many legal things.  He did not finish high school and joined the Army at age 17.  He had absolutely no idea that they had signed away his retired pay for her.  She is willing to pay past due premiums.

4.  The FSM’s military records show that he was born on 4 January 1939.  He initially enlisted in the U. S. Army Reserve on 16 January 1956, enlisted in the Regular Army on 1 September 1956 and, after a short break in service, reenlisted in the Regular Army on 28 January 1958.  

5.  The FSM’s Record of Emergency Data, DD Form 93, dated 10 July 1981 shows that he had three children.

6.  The FSM retired on 1 September 1982.  At that time, he completed a DA Form 4240.  In Part IV, he checked item 15e, that he declined SBP coverage.  He signed the form and the applicant signed in Part IX on the reverse, acknowledging that she was fully informed and counseled concerning the options available under the SBP and that she understood the decision the FSM made.  Part X contains the warning that the SBP election is permanently irrevocable.

7.  The FSM died on 24 September 2001.  

8.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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. 

9.  Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991.  Public Law 101-510, enacted              5 November 1990, delayed the start of this Open Season to 1 April 1992 through 31 March 1993.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

10.  Public Law 105-261, enacted 17 October 1998, established an Open Season to be conducted 1 March 1999 – 29 February 2000.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

CONCLUSIONS:

1.  While there is no evidence of Government error and the DA Form 4240 did contain the warning that the FSM’s election was permanently irrevocable, the Board notes that warning was on the reverse of the form in the next-to-last part after everything had been completed and signed.  The Board accepts the applicant’s argument that both she and the FSM were improperly counseled regarding the SBP.  

2.  The FSM had an opportunity to enroll in the SBP during the 1992 Open Season.  The Board believes that it would be appropriate to show that he enrolled in the SBP on 1 April 1992 for spouse and children coverage, full base amount.  (The Board presumes that, since the applicant states she has five children and the FSM’s DD Form 93 shows he had three children, two children were born after July 1981 and were minors in 1992.)  It would be appropriate to require payment of past due premiums.

3.  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 enrolled in the SBP, full base amount, with spouse and children coverage on 1 April 1992, the first day of the 1992 - 1993 Open Season enrollment period.

2.  That the applicant be advised that the Defense Finance and Accounting Service will be instructed to collect any SBP costs due and advised to provide the Defense Finance and Accounting Service the birth certificates of all their children. 

3.  That the applicant be paid an annuity based upon the FSM’s election to participate in the SBP retroactive to 24 September 2001, the date of his death.

BOARD VOTE:  

__jl____  __gdp___  __cg____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Joann Langston
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002068044	
SUFFIX		
RECON		
DATE BOARDED	20020425	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.