MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            7 September 2000  
	DOCKET NUMBER:   AR2000037947

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adoplhi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern, III		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:  In effect, that the records of her spouse, a deceased former servicemember, be corrected to reflect participation in the Survivor Benefit Plan (SBP).

APPLICANT STATES:  Her spouse was offered an opportunity to apply “for SBP but at the time was to sick to apply.”  She provides a doctor’s statement indicating her spouse’s “condition…at the time.”  She notes that her spouse “was unable to fill out papers” and was “sorry that he didn’t or couldn’t apply for SBP.”  She states that if he had been “himself he would have applied.”  In support of her request she submits a 1990 doctor’s statement indicating the former servicemember “had terminal cancer that prevented him from functioning in a lucid manner and was not competent to make any decisions toward the later part of his life.”  She also includes a 1990 statement indicating the dates of her spouse’s surgeries, following his diagnosis of Squamous Cell Carcinoma, which began in March 1982.

EVIDENCE OF RECORD:  The former servicemember’s military records show:

On 6 July 1954, while the former servicemember was on active duty, he completed a DA Form 1041 (Election of Options Under the Uniformed Service Contingency Option Act) indicating that he did not wish to receive reduced retired pay in order to provide an annuity for his family members.  The form noted that all servicemembers “with over 17 years service” were to “make a positive statement to be covered or not covered by the Act.”  The form also noted that an active member could modify or revoke his election “as often as he chooses prior to retirement” but once retired his election could not be modified or revoked.  On 23 August 1956 the former servicemember again completed a DA Form 1041 indicating he did not desire to receive reduced retired pay in order to provide an annuity for his dependents.

On 31 July 1963 the former servicemember was released from active duty and his name placed on the retired rolls the following day.  At the time of his retirement he had completed more than 22 years of active Federal service and more than 29 years for pay purposes.  His “Data for Retired Pay” form indicates he declined participation in the Retired Servicemen’s Family Protection Plan (RSFPP).

In March 1982 the applicant underwent lung surgery and died on 2 February 1984 at the age of 66 from carcinomatosis.

In 1972 the RSFPP was repealed and replaced by the SBP.  A 12 months “open season” period enabled retired servicemembers to elect participation in the new program.  The original 12 month enrollment period was subsequently extended to 20 March 1974.  A second open enrollment period occurred between 
1 October 1981 and 30 September 1982 as a result of new changes to the SBP.  Members entitled to retired pay could enroll or increase previously elected coverage but had to live for two years before beneficiaries would become eligible for an annuity.

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 evidence indicates the former servicemember specifically declined participation in a survivor benefit plan on two separate occasions while on active duty.  Subsequent to his retirement, in 1972 and again in 1981, he had an opportunity to elect enrollment in the SBP.  There is no evidence he took any action to participate in the program at any time.

2.  While the applicant maintains that her spouse was unable to make an election the Board notes that the former servicemember died more than 2 years after the 1981 open enrollment period and did not have his first surgery until March 1982, five months after the October 1981 open enrollment period.  The fact that the former servicemember declined to participate in a survivor benefit program at the time of his 1963 retirement and never availed himself to the 1972 or 1981 open enrollment periods tends to support the conclusion that he did not wish to participate in any of the plans.

3.  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 that requirement.

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__  ___wtm__  ____tbr_  DENY APPLICATION

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

INDEX

CASE ID	AR2000037947	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.