MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 September 2002
	DOCKET NUMBER:   AR2002066327

	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. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Thomas B. Redfern, III		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:  In effect, that she and the FSM were married after he retired on disability.  Upon their marriage the FSM notified Defense Finance and Accounting Services (DFAS) and requested SBP coverage for spouse.  The FSM
called DFAS concerning his request, he was told that the waiting period for SBP
coverage after a new marriage was 13 years not 13 months.  He became brain dead in 1996 and she has attempted to have his retirement pay sent to her since 1996.  In 1999, the FSM died.  The applicant submits in support of her application a copy of the FSM’s separation document (DD Form 214), a copy of her certificate of marriage, a statement from the FSM’s physician, and a copy of the FSM’s death certificate.  The Board considered the applicant’s request to receive the FSM’s retired pay on 12 April 2000 (AR1999028168).

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

He enlisted in the Regular Army on 29 February 1972.  On 26 June 1973, he was placed on the Temporary Disability Retired List (TDRL).  He was apparently single at the time.  He was permanently retired by reason of physical disability in 1975.

The FSM and the applicant married in November 1984.

There is no indication in the FSM’s official military personnel record that shows he attempted to enroll the applicant into the SBP after their marriage.

The FSM’s official military personnel record shows that on 10 September 
1996, the applicant informed the Defense Finance and Accounting Services,
(DFAS) Cleveland that the FSM was estranged from her and their two children.

The FSM’s official military personnel record shows that the applicant 
petition DFAS-CL in 1996, for his retired pay while he was hospitalized and was diagnosed as brain dead and living on life support.  

His record also shows that his sister applied for trusteeship and was approved by DFAS.

On 21 February 1999, the FSM died.

Public Law 92-425, 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.

Public Law 101-189, enacted 29 November 1989, established an 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.

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 of record does not show that the FSM attempted to enroll in the SBP at the time of their marriage.  The applicant does not provide any evidence that shows the FSM was given erroneous information concerning SBP coverage.

2.  The FSM had two opportunities to elect SBP coverage during Open Season (1 October 1991 – 30 September 1992) and (1 April 1992 – 31 March 1993). However, there is no evidence to show that it was his intention to enroll in the SBP before he became too ill to do so.

3.  The Board noted that the applicant and the FSM were married from November 1984, until his death in February 1999, approximately 15 years.  However, the Board believes that the FSM had several opportunities to elect 
SBP if it was truly his intentions. 

4.  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 this requirement.

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

__EJA__  __TBR___  ___KAH__  DENY APPLICATION

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

INDEX

CASE ID	AR2002066327	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/17	
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.	137.0000	
2.		
3.		
4.		
5.		
6.