MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 March 2001                             
	DOCKET NUMBER:   AR2001052469

	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	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Regan K. Smith		Member	
	Mr. John P. Infante		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 earlier appeal to correct her former husband’s (the deceased former service member) military records by showing that she is entitled to survivors benefit program (SBP) benefits.

APPLICANT STATES:  In effect, that since the Army does not have any documents to show that the applicant elected not to participate in SBP, she should be entitled to the benefits.  She claims that she has been told that participation was automatic and that, unless he took affirmative action to dis-enroll the premium was automatically deducted from his retired pay.  Additionally, the applicant states that she believes that she is entitled to the proceeds from his Servicemembers’ Group Life Insurance (SGLI).  She also requests copies. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR1999025218) on 
17 November 1999.

The applicant’s contentions are new argument that requires Board consideration.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  Paragraph 2-9, Burden of proof, states “the ABCMR begins consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or an injustice by a preponderance of the evidence.”  

Paragraph 2-15 of the regulation provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence had been submitted.

The regulation provides further guidance, in sub-paragraph 2-15b, for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

Title 10, United States Code, section 1552 is the law that provides for boards of correction of military records.  It provides, in pertinent part, that “No payment may be made under this section for a benefit to which the claimant might later become entitled under the laws and regulations administered by the Secretary of Veterans Affairs.” 

SGLI is supervised by the Department of Veterans Affairs but is administered by the Office of Servicemembers’ Group Life Insurance under the terms of a group insurance policy.  SGLI can be converted to Veterans’ Group Life Insurance (VGLI) within 120 days of separation from active service.  VGLI like SGLI is supervised by the Department of Veterans Affairs but is administered by the Office of Veterans’ Group Life Insurance under the terms of a group insurance policy.

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.  Contrary to the applicant’s assertions, it is her responsibility to demonstrate that there is an error or an injustice in the record.  The mere fact that she has not received any benefit from the deceased FSM’s service or from his death does not demonstrate an injustice.
 
2.  SGLI would have had to be converted to VGLI within 120 days of the FSM’s separation from active service.  This Board has no jurisdiction over the FSM’s SGLI or VGLI in any case.

3.  This Board is not the custodian of the FSM’s military records.  Once the original case was decided his records were returned to the repository in St. Louis.  To obtain copies of service record documents the applicant needs to submit a request (along with sufficient documentation to show that she has a legitimate status) to the National Personnel Records Center.

4.  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.

5.  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

__SP ___  __RKS__  __JPI____  DENY APPLICATION

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

INDEX

CASE ID	AR2001052469	
SUFFIX		
RECON		
DATE BOARDED	20010322	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.00	
2.		
3.		
4.		
5.		
6.