MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 March 1999                   
	DOCKET NUMBER:   AC96-06465
				   AR1998013397

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Curtis L. Greenway		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the Survivor Benefit Plan (SBP) election of her deceased spouse, a former service member (FSM) be changed to “spouse” coverage.

APPLICANT STATES:  That if her deceased spouse had truly been made aware of the SBP, he would have elected “spouse” coverage.

EVIDENCE OF RECORD:  The applicant's military records show:

The FSM retired from active duty on 31 August 1975, as a First Sergeant, E-8, after completing over 22 years of creditable active service.

On 16 June 1975, while the FSM was stationed in Korea, he completed DA Form 4240, Data for Payment of Retired Army Personnel.  At that time he elected not to participate in the SBP.  His spouse, the applicant, was notified by letter on    27 June 1975 that he had elected not to participate in the SBP.

The FSM died on 16 June 1993.

Public Law 92-245, the SBP, enacted 21 September 1972, 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.  

Public Law 97-35, enacted 13 August 1981, established an Open Season enrollment period from 1 October 1981 – 30 September 1982.

Public Law 101-189, enacted 29 November 1989, as amended by Public Law 101-510, enacted 5 November 1990, established an Open Season enrollment period from 1 April 1992 – 31 March 1993.

In the processing of this case, an advisory opinion was obtained from the Army Retirement Services office.  The opinion noted that the FSM had three opportunities to enroll in the SBP, on the date of his retirement and during two subsequent open enrollment seasons (although had he enrolled during the second open enrollment season, an annuity could not have been paid because he died less than two years after the earliest possible enrollment date, a condition for eligibility at that time).  No evidence was submitted to indicate that the FSM intended to enroll in the SBP.  That office recommended the applicant’s request be disapproved.

The applicant rebutted this advisory opinion stating, in effect, that she has been provided no evidence to show that any information was forwarded to her late spouse which would have enabled him to enroll in the SBP.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The FSM’s SBP election form was properly completed at the time he retired.  He elected not to participate in the SBP.  The applicant was notified by letter of the FSM’s election.

3.  The FSM had two opportunities to enroll in the SBP during subsequent Open Season enrollment periods.  There is no evidence that he attempted to do so.  As a retired First Sergeant, the FSM would have been expected to inform himself of the ways and means for changing his SBP non-participation election had he intended to do so.

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__CLA___  __VBC___  __CLG___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC96-06465/AR1998013397	
SUFFIX		
RECON		
DATE BOARDED	19990311	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.