MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 January 2001                   
	DOCKET NUMBER:   AR2000046033

	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:

	Ms. June Hajjar		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen A. Heinz		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 deceased spouse, a former service member (FSM), be corrected to show he enrolled in the Survivor Benefit Plan (SBP).

APPLICANT STATES:  That the SBP was not explained to her and she believes that the FSM did not have a good understanding of it.  She does not recall ever turning the SBP down.  

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

After having had prior service, he reenlisted in the Regular Army on 25 May 1959.  He retired on 1 December 1976.  On 29 November 1976, the FSM had completed a Data for Payment of Retired Army Personnel form, DA Form 4240.  On this form he checked that he did not desire to enroll in the SBP.  Also on       29 November 1976 a letter was sent to the applicant, at the same address as listed on the DA Form 4240, the FSM’s application for retirement, and his Report of Separation from Active Duty, DD Form 214, informing her that the FSM had elected not to enroll in the SBP.  The available copy of the letter shows that the applicant did not sign and return the letter acknowledging she understood the FSM’s SBP choice.

On 9 December 1999, the FSM died.  

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.  Until 1 March 1986, when the spouse’s written concurrence was required for a retiring member’s election that provides for less than the maximum spouse coverage, only spousal notification of the member’s election was required.

Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.

Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 (but deferred to 1 April 1992).

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.  When the FSM retired in 1976, he elected not to enroll in the SBP.  The applicant was notified of his decision as required by law.  Although the available notification letter does not show that she signed and returned the notification, the letter was sent to the same address as listed on several contemporary documents.  It is reasonable to presume that the applicant received the notification in 1976.

2.  The applicant provides no evidence to show that the FSM may not have understood the SBP and what he was giving up when he declined to enroll.
He had two further opportunities to participate in the SBP during the 1981 and the 1992 Open Seasons.  These two Open Seasons, especially the 1992 Season, were well-publicized by the Army especially in Army Echoes, the Army retiree newsletter.  There is no evidence to show he attempted to enroll during either of these two periods.

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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jh____  __le____  __kah___  DENY APPLICATION

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

INDEX

CASE ID	AR2000046033	
SUFFIX		
RECON		
DATE BOARDED	20010125	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.