MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 May 2002
	DOCKET NUMBER:   AR2002070342

	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 V. O’Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Paula Mokulis		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 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:  That the FSM decided not to enroll in the SBP when he retired, a decision he later regretted deeply.  She never had the opportunity to review the options or to elect that she wanted the SBP.  She would have liked to have done so, seeing this decision would have a direct impact on her later on.  She would have made this request sooner but only recently learned that she could petition the Board to correct the FSM’s records.  She is more than willing to pay any premiums that would be due.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

After having had prior service in the National Guard, he enlisted in the Regular Army on 13 May 1954.  He retired on 1 February 1976.  At that time, he completed a Data for Payment of Retired Army Personnel, DA Form 4240, and declined to enroll in the SBP.  The DA Form 4240 indicates the applicant was not available for counseling but was informed by letter dated 29 December 1975 of the FSM’s decision.

The FSM died on 23 August 1983.

Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP 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.  Retiring members and spouses were to be informed of the SBP options and effects.  

Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.  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. 

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 Board is empathetic with the applicant’s circumstances; however, there is no evidence of Government error in this case.

2.  Spousal concurrence with a member’s declination to participate in the SBP was not required at the time the FSM retired, only spousal notification.  The DA Form 4240 indicates the applicant was sent notification that the FSM had declined to participate in the SBP.  

3.  The FSM had the opportunity to enroll in the SBP during the 1981 – 1982 Open Season.  The two-year survivability requirement would not have been met; however, his enrollment would have indicated his intent to provide the SBP for the applicant.  This Open Season was extensively publicized; however, there is no evidence to show that he attempted to enroll during this period.

4.  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

_RVO___  ___JPI__  __PM____  DENY APPLICATION

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

INDEX

CASE ID	AR2002070342	
SUFFIX		
RECON		
DATE BOARDED	2002/05/30	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	137.02	
2.		
3.		
4.		
5.		
6.