MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 August 2000                   
	DOCKET NUMBER:   AR2000037645

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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 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.

APPLICANT STATES:  That he did not elect spouse coverage upon his retirement because his first wife died just a week before his retirement.  When they married, he immediately went to Fort Bliss, TX to add her to his SBP but was told only a first wife could be a beneficiary.  He was improperly counseled and she just found out that the information given to him all these years had been wrong.  Her son, born on 1 July 1984, has been receiving the annuity.

EVIDENCE OF RECORD:  The FSM’s military records show:

He initially enlisted in the Regular Army on 31 December 1958.  After a break in service, he reenlisted on 18 September 1963.  His spouse died on 23 October 1982.  On 25 October 1982, he completed DA Form 4240, Data for Payment of Retired Army Personnel and elected dependent children only SBP coverage.  He retired on 1 November 1982.  He and the applicant married on 3 June 1983.  On 28 March 1988, the FSM died.

Public Law 92-245, 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. 

Title 10, U. S. Code, section 1448(a)(5) provides that a person who is not married upon becoming eligible to participate in the SBP but who later marries may elect to participate.  Such an election must be in writing, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries.

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.  Because the FSM’s spouse died prior to his retirement, he made a proper SBP election of dependent children only at that time.  Because he did not have a spouse at the time of his retirement, by law he was entitled to request spouse coverage within one year of his remarriage to the applicant.  

2.  The applicant contends that the FSM attempted immediately upon their marriage to add her to his SBP.  Unfortunately, it appears he was given erroneous advice and there is no evidence to show that he attempted to verify this advice through other channels, such as sending a written request to a higher authority at Fort Bliss, TX or directly to the Retired Pay Operations.  

3.  Regrettably, 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:

__sk____  __jea___  __reb___  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000037645	
SUFFIX		
RECON		
DATE BOARDED	20000808	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.