RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            8 April 2004
	DOCKET NUMBER:   AR2003091727

	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	
	Ms. Carolyn Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. William D. Powers		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests reconsideration of her earlier request to the Army Board for Correction of Military Records (ABCMR) to correct the records of her deceased spouse (hereinafter referred to as the former service member, or FSM) to indicate that he elected to participate in the Survivor Benefit Plan (SBP) at the full base amount, rather than at the reduced amount.

2.  The applicant states that in her initial request she failed to include the fact that she cannot comprehend written or spoken English.  She states that she was not provided a translator or a translated copy of the documents she was required to sign.  She further states that the FSM told her that she needed to sign papers for an Identification (ID) Card and CHAMPUS (Civilian Health and Medical Program of the Uniformed Services) benefits, but she was not told anything about SBP until the casualty assistance officer took her to Fort Bragg, North Carolina.

3.  The applicant provides a 17 March 2003 self-authored statement in which she, through a translator, states she does not speak English and her husband did not speak Spanish; that Spanish is her first language; that she accompanied her husband throughout his retirement processing, but no translators were available to explain SBP benefits to her.  This document was not previously reviewed by the ABCMR; therefore, it is considered new evidence.

4.  The applicant provides a copy of a memorandum on her behalf from the Installation Retirement Services Office regarding her seeking clarification of her SBP annuity.  This document was not previously reviewed by the ABCMR; therefore, it is considered new evidence.

5.  The applicant provides, in support of her contention that she does not understand English, a copy of a "letter of lateness" authored by the FSM on 26 February 1992 in which he stated that a Report of Survey was late because his house had burned and his wife did not speak English.  This document was not previously reviewed by the ABCMR; therefore, it is considered new evidence.

6.  The applicant provides a copy of a letter authored by the FSM on 15 March 1993 seeking guidance/clarification on the required procedure for replacing his wife's immigration visa.  This document was not previously reviewed by the ABCMR; therefore, it is considered new evidence.

7.  The applicant provides a copy of an incident report filed by the FSM with the Pinehill (North Carolina) Fire Department on 26 December 1991.  This document was not previously reviewed by the ABCMR; therefore, it is considered new evidence.

8.  The applicant provides a copy of a 5 December 2001 DFAS-CL Form 7220/148 (Retiree Account Statement) showing that, as of 2 January 2002, her reduced annuity base amount was $484.74 (as a result of cost-of-living increases) and her pre-social security annuity would be $266.60.  It also shows that the FSM had a former spouse deduction of $413.01 from his retired pay.  This document was previously considered by the Board.

9.  The applicant provides a copy of a memorandum to the ABCMR from the Casualty Office, Headquarters, XVIII Airborne Corps and Fort Bragg, dated 18 March 2003, in which it is noted that the applicant's Casualty Assistance Officer had been deployed in support of Operation Enduring Freedom.  This document was not previously reviewed by the ABCMR; therefore, it is considered new evidence.

10.  The applicant provides a self-authored statement, dated 29 April 2003, in which she states through a translator that she was temporarily moving to Panama to take care of her sick father and provided the address where she could be reached.  This document was not previously reviewed by the ABCMR; therefore, it is considered new evidence.

11.  The applicant provides a copy of a document (Title VI of the U.S. Civil Rights Act of 1964).

CONSIDERATION OF EVIDENCE: 

1.  Incorporated herein by reference are military records which were summarized in the ABCMR's previous consideration of the applicant's case in Docket Number AR 2002075049 on 12 December 2002.

2.  On 20 July 1992, the FSM completed a Data for Payment of Retired Army Personnel, DA Form 4240.  On this form, the FSM elected to participate in the SBP for spouse-only coverage at a reduced ($378.00) base amount.  The applicant signed this form in item 24 on 20 July 1992 acknowledging that she was fully informed and counseled concerning options available under the SBP and that she understood and concurred with the FSM's decision.

3.  The FSM retired with 20 years, 7 months, and 10 days of creditable active Federal service on 31 July 1992.  He died on 26 December 2001.

4.  The applicant was/is a Panamanian national.  Her native language is Spanish.

5.  Public Law 92-424, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.

6.  Public Law 199-145, enacted 8 November 1985, but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provided less than the maximum spouse coverage.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant concurred in the FSM's election to provide an SBP annuity at a reduced base amount.  On 20 July 1992, she signed Part VI (Certification) of DA Form 4240 (Survivor Benefit Plan Election) acknowledging same.

2.  The applicant has provided documentation purporting that she did not either speak or understand English well enough to knowingly concur in her husband's election of reduced spousal SBP coverage.  However, those documents and that argument are not persuasive.  The applicant appeared and personally signed the DA Form 4240 concurring in a reduced SBP election.  Given the fact that the FSM already had a former spouse deduction of over $400.00 coming from his retired pay, it is more than plausible to believe that the applicant concurred in the reduced SBP amount for herself in order to maximize the couple's net income.

3.  In the absence of irrefutable evidence to the contrary, the Board presumes regularity in the FSM's retirement processing.  This means the Board presumes that the applicant was properly advised of, and fully understood, the benefits of the SBP, and that she willingly and freely agreed to an annuity calculated on less than the full base amount of the FSM's pay.  She has provided no evidence to refute this presumption of regularity.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__rjw___  __gjw___  __wdp___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2002075049, dated 12 December 2002.

			Raymond J. Wagner
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003091727	
SUFFIX		
RECON		
DATE BOARDED	20040408	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.1800	
2.		
3.		
4.		
5.		
6.