IN THE CASE OF:	

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100012319 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the military 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 and that she be paid the SBP annuity.

2.  The applicant states the following:

* she was not counseled by anyone in reference to the SBP in 1991
* she signed the form at home and the form appeared to be a W-4 Form for taxes and other information
* she never met the Retirement Services Officer (RSO) and she was not present when the form was completed and dated
* her husband passed away on 5 December 2007 and she reported his death to the Retired Pay Department
* she was told her husband never paid SBP premiums from his retired pay
* she had no knowledge she was not covered until after her husband's death

3.  She provides the following documents in support of her application:

* DA Form 4240 (Data for Payment of Retired Army Personnel)
* DD Form 1173 (Identification and Privilege Card)
* letter addressed to the Defense Finance and Accounting Service, dated 9 February 2010
* Certificate of Death
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  After having prior active service, the FSM enlisted in the Regular Army on 20 January 1975.  He and the applicant were married on an unknown date.

2.  On 2 December 1991, the FSM completed a DA Form 4240 and declined to participate in the SBP.  In Part V (SBP Election) of this form, he indicated that he was married and had one dependent child.  The applicant signed Part VII (SBP Certificates) acknowledging she had been fully informed and counseled concerning the options available under the SBP for a survivor annuity.  She also acknowledged that she understood the decision the FSM had made in Part V of the certificate.  The DA Form 4240 was signed and dated by the RSO counselor at Fort Benjamin Harrison, IN, on 2 December 1991.

3.  The FSM retired and was placed on the Retired List on 1 April 1992.

4.  The FSM died on 5 December 2007.  His death certificate shows his marital status as married and lists the applicant as spouse.

5.  Public Law 92-425, 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 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse's written concurrence for a retiring member's election that provides less than maximum spouse coverage.  Neither spousal concurrence nor notification is required when a member fails to enroll in the SBP during an open season.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant signed a DA Form 4240 in December 1991 acknowledging she had been fully informed and counseled concerning the options available under the SBP for a survivor annuity and concurring with the FSM's decision to decline enrollment in the SBP.

2.  The FSM retired on 1 April 1992.  He was married to the applicant at that time; however, he elected not to participate in the SBP and the applicant concurred with his decision.

3.  No evidence is available which indicates the FSM attempted to enroll in the SBP during an open season.

4.  Regrettably, in view of the foregoing there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100012319



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ABCMR Record of Proceedings (cont)                                         AR20100012319



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