MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  23 October 2001
	DOCKET NUMBER:  AR2001059102

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley Powell		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Allen L. Raub		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 she be provided Survivor Benefit Plan annuity benefits based on the death of her former husband, a recently deceased former service member (FSM).

APPLICANT STATES:  The applicant states, in effect, that she was the FSM’s wife for 20 years, 17 of which were during his 20 years of active military duty, and she is the mother of his two children.  She was led to believe that she could receive benefits following his death.  She provides a copy of a marriage license and the FSM’s death certificate.

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

He served on active duty from 5 October 1955 to 31 October 1975, when he retired as a Platoon Sergeant, pay grade E-7, with 20 years and 26 days active service.  At the time of retirement, he completed a DA Form 4240, Data for Payment of Retired Army Personnel.  In Part II of the form for Survivor Benefit Plan Election, he elected “none” or no Survivor Benefit Plan for his wife and dependent children.  He signed this certificate on 23 September 1975 in the presence of a witness, who also signed the form.  His wife also signed the form on 31 October 1975, under the statement, “I, the spouse of (the FSM), have been fully informed and counseled concerning the options available under the Survivor Benefit Plan for a survivor annuity.  I understand the decision which has been made and is reflected on the reverse of this certificate.”  There is no evidence that the FSM changed this election of no Survivor Benefit Plan during any of the open seasons provided for such change.  The FSM received military retired pay until his death from natural causes on 29 December 1999, in Dublin, Georgia.

Public Law 92-425, the Survivor Benefit Plan (SBP), enacted on 21 September 1972, provides that military members on active duty can elect to have their retired pay reduced to provide for an annuity after death to a surviving spouse and/or dependent children.  In those cases where the member elected not to participate in the SBP, it is required that the spouse be made aware of the member's decision and of the implications of that decision as it affected the spouse's future welfare. Public Law 97-35, effective 13 August 1981, provided for an open enrollment season which permitted members, eligible for retired pay on 13 August 1981, to elect to participate in the SBP during the period 1 October 1981 through 30 September 1982.  Eligible retirees were furnished forms and instructions in order to enroll if they desired.  There have been 3 more one-year open SBP enrollment opportunities since 1982.  If SBP enrollment was elected during an open enrollment, the member would have to pay all the premiums, plus interest and an additional amount determined by the Secretary to protect the financial soundness of the Defense Military Retirement Trust Fund, from the date of the member’s retirement as though he had elected SBP at that time and had 

been paying premiums since retirement.  This lump sum premium payment during an open SBP election season could be a considerable amount of money.

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 FSM elected “none” or no Survivor Benefit Plan for his wife and dependent children by his own signature of the pertinent certificate on 
23 September 1975.  This election was signed by a witness.  The applicant also signed the certificate statement that she understood the decision to elect “none” or no Survivor Benefit Plan.  There is no evidence that the FSM changed this election during any open election season and paid the required premium.  As such, the applicant is not now entitled to any Survivor Benefit Plan annuities or benefits.

2.  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____  __to____  __ar____  DENY APPLICATION

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

INDEX

CASE ID	AR2001059102	
SUFFIX		
RECON		
DATE BOARDED	20011023	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137 – Survivors Benefits	
2.		
3.		
4.		
5.		
6.