IN THE CASE OF: 

		BOARD DATE: 15 December 2022

		DOCKET NUMBER: AR20220005819


APPLICANT REQUESTS:

*	correction of her late husband's records to show he enrolled in the Survivor 
Benefit Plan (SBP) for spouse coverage
*	a personal appearance before the Board via video or telephone

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record under the Provisions 
of Title 10, U.S. Code, Section 1552)
*	Letter from County Veterans Affairs, 14 February 2022
*	Certificate of Death, 2 July 2020
*	DA Form 4240 (Data for Payment of Retired Army Personnel), 14 December 
1992
*	DA Form 3713 (Data for Retired Pay), 8 April 1992
*	520th Personnel Service Company Orders 066-263, 20 March 1992

FACTS:

1.  The applicant, the surviving spouse of the retired service member (SM), states she 
was not involved in her late husband's decision whether to participate in the SBP. She 
and her late husband did not understand English very well and she believes he did not 
understand what he was being asked when he was informed about the SBP.

2.  On 1 December 1982, the SM and the applicant were issued a marriage license. A 
marriage certificate was not provided.

3.  On 14 December 1992, the SM completed DA Form 4240 wherein he indicated he 
was married and had dependent children.

	a.  Part V (SBP Election) states: "Your SBP election is irrevocable. If you are married 
and elect not to participate or elect less than maximum coverage, your spouse must 
agree with your election. If your spouse does not agree, maximum coverage will be 
established."

	b.  The DA Form 4240 shows the SM declined SBP coverage. The SM properly 
signed the DA Form 4240, indicating he was fully counseled on the benefits afforded 
under the SBP.

	c.  The applicant properly signed the DA Form 4240, indicating she was fully 
informed and counseled concerning the options available under the SBP and concurred 
with the SM's decision to decline SBP coverage.

4.  On 31 December 1992, the SM retired and was placed on the Retired List effective 
1 January 1993.

5.  On 29 June 2020, the retired SM died at 68 years of age. His death certificate lists 
the applicant as his wife and informant.

6.  The Defense Retiree and Annuitant Pay System has no SBP documents on file for 
the retired SM. The system indicates coverage was declined at the time of retirement.


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the SM's military records, a majority of the Board found relief is not warranted. 
The Board found the available evidence sufficient to consider this case fully and fairly 
without a personal appearance by the applicant.

2.  A majority of the Board found the record clearly shows the SM declined SBP prior to 
retirement and the applicant concurred with his election. A majority of the Board noted 
the election form clearly stated the election to decline SBP would be irrevocable and 
determined there is no error or injustice in this case.

3.  The member in the minority found the applicant s statement regarding a language 
barrier compelling as a basis for relief. The member in the minority determined the SM s 
record should be corrected to show the applicant did not concur with the election to 
decline SBP, which resulted in a default election for maximum coverage.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:xx	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:xx	:	:xx	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.
	 
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.


REFERENCES:

1.  Public Law 92-425, enacted 21 September 1972, repealed the Retired Serviceman's 
Family Protection Plan and 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. An election, once made, was irrevocable 
except in certain circumstances.

2.  Title 10, U.S. Code, section 1448, provides that if a person makes an election not to 
participate in the SBP, the person's spouse shall be notified of that election. An election 
not to participate in the SBP is irrevocable if not revoked before the date on which the 
person first becomes entitled to retired pay.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220005819


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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