MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 August 2002
	DOCKET NUMBER:   AR2002068619

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Margaret V. Thompson		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).  She states that the FSM’s failure to enroll in the SBP was an oversight because of his back pain and overall health, both physical and mental.  Retirees who retired before 1972 were sent a letter telling them about the SBP and giving them until 1974 to enroll.  If the FSM did not offer to provide SBP coverage for her, it was because this letter was not received.

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

After having had prior service, he reenlisted in the Regular Army on 16 January 1952.  He and the applicant married on 14 June 1954.  He retired on 1 December 1968.  His Application for Voluntary Retirement, DA Form 2339, indicates that he had not elected to participate in the Retired Serviceman’s Family Protection Plan (RSFPP).  He died on 21 April 2001.

In the processing of this case, an advisory opinion was obtained from the Transitions and Separations Branch, U. S. Army Personnel Command.  That office noted that the FSM did not elect to participate in the SBP when it came into effect in 1972.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  She did not respond within the given time frame.

Records at the Defense Finance and Accounting Service verified that the FSM had not enrolled in the RSFPP or in the SBP.

Public Law 87-381, enacted 4 October 1961, established the RSFPP, which covered persons dependent on the member at retirement.  

Public Law 92-425, enacted 21 September 1972, repealed the RSFPP and 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.  Extensive publicity of this Open Season was given in Army Echoes, the Army bulletin published and mailed to retirees to keep them abreast of their rights and privileges and to inform them of developments in the Army. 

Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 – 30 September 1992.  Extensive publicity was given in Army Echoes.  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 an Open Season to be conducted 1 March 1999 – 29 February 2000.  Extensive publicity was given in Army Echoes.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  The Board is cognizant of the fact the applicant was married to the FSM for 46 years and for the majority of his military career; however, there is no evidence to show that it was his intention to participate in the SBP.

2.  When the FSM was still on active duty and presumably in good health, he failed to enroll in the RSFPP, the annuity program superseded by the SBP.  Extensive information, not just one letter, about the SBP was provided to retirees who retired prior to 1972.  In addition, extensive publicity was given to retirees regarding the three subsequent SBP Open Seasons and there is no evidence to show that the FSM intended to enroll in any one of the Open Seasons.  

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

__RJW__  ___LE___  __MVT__  DENY APPLICATION

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

INDEX

CASE ID	AR20020688619	
SUFFIX		
RECON		
DATE BOARDED	2002/08/08	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.01	
2.		
3.		
4.		
5.		
6.