MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 January 2002                   
	DOCKET NUMBER:   AR2001062945

	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. George D. Paxson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Richard T. Dunbar		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 she be paid the arrears in pay owed her deceased spouse, a former service member (FSM), from 23 January 1979 to    10 May 2001 and that the FSM’s records be corrected to show he enrolled in the Survivor Benefit Plan (SBP).

APPLICANT STATES:  That the FSM was advanced from Sergeant First Class (SFC) to Chief Warrant Officer Two (CW2) effective 23 January 1979.  In June 2001, the Defense Finance and Accounting Service (DFAS) issued a payment in the net amount of $41,506.02 that represented his back pay due from 23 January 1979 – 31 May 2001.  However, the FSM had died on 11 May 2001.  Her bank informed her on 5 September 2001 that DFAS was demanding the money back.  DFAS went on to state that the FSM had elected not to participate in the SBP on 14 December 1973 and went on to give all the dates SBP was offered again and not taken advantage of.  The FSM was wrongly counseled to wait until his retirement as a warrant officer to take the SBP.  He inquired about the SBP during the 1981 – 1982 Open Season but was informed over the phone that he could get the SBP but he would have had to pay the whole amount due since 1969 in one lump sum.  Putting four children through school made that an impossible task.  By time of the 1999 – 2000 Open Season he was terminally ill and incapable of handling most of his affairs.  Up to the time he became ill with cancer he was always saying the Army would take care of his retirement and the SBP.  He was given totally inaccurate information on the SBP when he retired in 1969.  The only time they received direct mail on the SBP was the notification of the 1973 letter of open availability.  The only information forthcoming otherwise was through Army Echoes.  

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

He enlisted in the Regular Army on 21 January 1949.  He was appointed a warrant officer on 21 January 1955 and served as a warrant officer on active duty until he was discharged as a CW2 on 16 September 1962.  He reenlisted in the Regular Army on 17 September 1962 and retired on 1 February 1969 as an SFC, after completing just over 20 years of active federal service.

On 14 December 1973, the FSM declined to participate in the SBP.  He was informed on a Final Notice that he had until 20 March 1974 to make an election and that he had been furnished, as were other retirees, a packet containing SBP instructions, information, and election forms in November 1972.  If he had misplaced these forms, he could obtain them at his nearest military installation.

On 27 September 2000, the FSM submitted a DD Form 149 requesting advancement on the retired list to his highest grade held (CW2).  On 23 March 2001, the Army Grade Determination Review Board convened and determined that the highest grade in which he served satisfactorily for the purpose of computation of retired pay was CW2.  The date he became eligible for advancement would be determined by the U. S. Army Reserve Personnel Command (AR-PERSCOM).  Once that date was determined, AR-PERSCOM would notify the FSM and DFAS.  

The FSM died on 10 May 2001.

On 6 June 2001, DFAS issued a payment to the FSM in the amount of $41,506.02, sent to his and the applicant’s joint bank account.  On 1 September 2001, DFAS notified the bank that they were reclaiming that amount, apparently because it had been issued in the FSM’s name and the FSM had died prior to   its issuance.  The applicant’s DD Form 149 is dated 17 September 2001.  On      24 September 2001, DFAS re-issued the payment to the applicant.  On             16 November 2001, DFAS issued her a payment in the amount of $412 for the FSM’s arrears of retired pay (1 – 10 May 2001).

Public Law 92-425, enacted 21 September 1972, established the SBP.  Upon creation of the SBP, an 18-month Open Season was conducted from                 21 September 1972 - 20 March 1974, in which all pre-1972 retirees were given the option to enroll.  The Department of the Army contacted all previously retired service members and explained to them the benefits and procedures provided by SBP.  This was done on several occasions.  First, a bulletin was sent out describing SBP.  The bulletin was followed by a circular and then by a letter which included a form, which when completed and returned would extend the benefits of SBP to those already retired.  A final notice provided a box to check on a postal card indicating the retiree's intention. 

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 a third Open Season to be conducted 1 October 1991 – 30 September 1992.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to    1 April 1992 – 31 March 1993.

Public Law 105-261, enacted 17 October 1998, established a fourth Open Season to be conducted 1 March 1999 – 29 February 2000.  

Title 10, U. S. Code, section 3964 provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.

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.  Records at DFAS show that the applicant was re-issued the payment of $41,506.02 on 24 September 2001.

2.  There is no evidence to show the FSM was improperly counseled concerning the SBP.  He could not have been improperly counseled upon his retirement in 1969 because the SBP did not exist until 1972.  In 1972, all pre-1972 retirees were given the option to enroll.  Several avenues were used to inform these retirees of the SBP.  Even if the FSM did not receive the initial notices, he did receive the Final Notice which informed him he had until 20 March 1974 to make an election and if he had not previously received or had misplaced the information, instructions, and forms he could obtain them from his nearest military installation.  The FSM elected, three months prior to the deadline, not to participate in the SBP.  

3.  There is no evidence to show the FSM was given erroneous information concerning any of the other Open Seasons available to him.  

4.  It is not reasonable to presume that the FSM, a senior noncommissioned officer who performed extensive active duty as a warrant officer, would have believed that the applicant was covered by the SBP when he had never paid into the program.  

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

__gdp___  __wtm___  __rtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2001062945	
SUFFIX		
RECON		
DATE BOARDED	20020124	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.