MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 November 1999                   
	DOCKET NUMBER:   AR1999021394

	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. Erin J. Olmes		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. James E. Anderholm		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:  Reconsideration of her request for correction of the records of her deceased spouse, a former service member (FSM), to show he elected to participate in the Survivor Benefit Plan (SBP) for spouse coverage.

APPLICANT STATES:  That she never received notice of the FSM’s decision to decline SBP and that under current standards spousal concurrence is required.  She never would have given her concurrence.

COUNSEL CONTENDS:  The applicant’s initial counsel contends that the applicant never received pre-retirement counseling on the impact that the FSM’s election (not to participate) would have on her future welfare.  She never signed a statement of concurrence in the FSM’s election.  The Army was obligated to take reasonable steps to ensure actual notification of the FSM’s election not to participate in the SBP.  The Army failed to ensure that notification was in fact received and understood.  Since notice was statutorily required, failure to give notice invalidates the election and restores full coverage.  In addition, under current law, passed only 9 days after the FSM retired, spousal concurrence is required.  Later counsel contends that the applicant believes the legislative intent of the change in law was to prevent continued abuses and injustices against spouses who were not informed of their right to receive SBP benefits.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of her case on 8 September 1993 (COPY ATTACHED).

No new information is presented.  However, counsel for the applicant contends that the Army was obligated to take reasonable steps to ensure actual notification of the FSM’s declination of the SBP.  In addition current law, enacted only 9 days after the FSM retired, requires spousal concurrence with a member’s declination of the SBP.  

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

1.  The Board concludes that the Army did take reasonable steps to ensure the applicant was notified of the FSM’s declination of the SBP.  The Army could not make personal notification of a soldier’s SBP election to each spouse, nor could the Army bear the cost of sending out notification by such means as certified mail (which, in any case would not ensure that the addressee would actually sign for such mail).  In any case, receipt or lack of receipt of such notification would not have changed the outcome of the election; at the time it was still the soldier’s decision alone.  

2.  Unfortunately, the FSM retired before enactment of the law that required spousal concurrence in an SBP declination.  Although he retired just 9 days before enactment of that law, the fact remains that spousal concurrence was not required on the date of his retirement.

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__ejo___  __jlp___  __jea___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021394	
SUFFIX		
RECON		
DATE BOARDED	19991118	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.