IN THE CASE OF: BOARD DATE: 17 November 2011 DOCKET NUMBER: AR20110005447 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, the widow of a deceased former service member (FSM), requests correction of the FSM's military records to show he elected to participate in the Survivor Benefit Plan (SBP) for spousal coverage based on his full retired pay. 2. The applicant states she wants the FSM's SBP election restored. She contends that she had non-concurred with the FSM's election to not participate in the SBP. She indicated her desire for SBP based on the FSM's full retired pay. a. At the time of the FSM's death, she was informed by her casualty assistance officer that the FSM had elected no SBP coverage. b. She knew that she had non-concurred with the FSM's SBP election but did not know what had happened to cause the discrepancy. c. Because of the FSM's death, she was not mentally or physically ready to fight the battle for SBP benefits. d. Recently, she went to Fort Benning, Georgia where she was able to obtain copies of documents showing the discrepancy. e. She was informed that the Defense Finance and Accounting Service (DFAS) at Fort Stewart, Georgia had made a mistake, and she should soon be receiving benefits. f. She acknowledges that any SBP annuity will be reduced to pay past due premiums from the date of the FSM's date of retirement until his date of death on 12 July 2008. 3. The applicant provides copies of a DD Form 2656 (Data for Payment of Retired Personnel) dated 28 July 2003; and her SBP spouse concurrence statement, dated 26 September 2003. CONSIDERATION OF EVIDENCE: 1. On 9 September 1983, the FSM enlisted in the Regular Army. He served through a series of enlistments and attained the rank of staff sergeant, pay grade E-6. 2. A DD Form 2656, dated 28 July 2003, shows the FSM had elected to not participate in the SBP. He signed and dated the form. 3. On 26 September 2003, the applicant completed a "Survivor Benefit Plan Spouse Concurrence Statement, wherein she indicated that she wanted the election to be for spouse based on the FSM's full retired pay. The available copy has poor legibility. 4. The FSM retired on 31 October 2003. 5. A Certificate of Death pertaining to the FSM reports that he died on 12 July 2008. 6. Records at DFAS contain: a. the FSM's non-participation election; b. the applicant's non-concurrence statement; and c. a record of a telephone communication, dated 6 October 2003, between the Retirement Services Officer (RSO) at Fort Stewart, Georgia and DFAS wherein the RSO informed DFAS that the spouse had concurred with the FSM's non-participation election. d. no evidence showing that SBP premiums have been paid; and e. no annuity has been established for the applicant. 7. 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. 8. Public Law 99-145, enacted 8 November 1985, required the spouse's written concurrence for retiring member's SBP election that provides less than maximum coverage. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that the FSM's military records should be corrected to show the FSM was enrolled in the SBP and elected spouse coverage based on his full retired pay. 2. The evidence of record clearly shows that the applicant had non-concurred with the FSM's election to not participate in the SBP. However, the RSO at Fort Stewart misread the applicant's statement and misinformed DFAS. This resulted in DFAS erroneously accepting the FSM's election to not participate in the SBP. 3. Because the applicant had clearly non-concurred with the FSM's election as was her right in accordance with public law, her request should now be granted. 4. In view of the above, the FSM's records should be corrected to show that he was enrolled in the SBP with spouse coverage based on his full retired pay and that the applicant had applied in a timely manner for the SBP annuity. 5. Furthermore, the resultant annuity should be reduced by an amount equal to the premiums that would have been due from 1 November 2003, the date of the FSM's retirement, until his death on 12 July 2008. BOARD VOTE: ___X____ ____X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the FSM was enrolled in the SBP with spouse coverage based on his full retired pay; b. showing that the applicant applied in a timely manner for the SBP annuity; c. paying the applicant the SBP annuity effective 1 November 2003; and d. recouping from the applicant's annuity an amount equal to unpaid SBP premiums for the period 1 November 2003 to 12 July 2008. _______ _ __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) AR20110005447 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110005447 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1